47 Mo. 246 | Mo. | 1871
delivered the opinion of the court.
This suit is brought to recover double damages for alleged injuries to the plaintiff’s horse while upon the track of the defendant’s railroad, in Warrensburg township, Johnson county. It is founded upon the forty-third section of the act in relation to railroad companies (1 Wagn. Stat. 310, § 43). The statutes cited make it the duty of railroad companies to “ erect and maintain good and substantial fences on the sides of their roads, where the same pass through, along, or adjoining inclosed or cultivated fields or uninclosed prairie lands, * * and also to construct and maintain cattle-guards ” at specified points. It is then provided that, until these conditions are complied with, railroad “ corporations shall be liable in double the amount of all damages which shall be done by their agents, engines, or cars, to horses, cattle, mules, or other animals, on said roads, * * occasioned by the failure to construct or maintain such fences or cattle-guards.” In order to the recovery of double damages under this statute three things at least would seem to be indispensably necessary, namely:
1. Failure on the part of the railroad corporation to provide the required fencing and cattle-guards at the points designated.
In G. W. R.R. Co. v. Hanks, cited above, Judge Lawrence observes: “It is urged that it is not important where it (the animal) got on the track, but where it was killed. On the contrary, the place where it got on is the precise thing to be considered. It was to prevent animals from straying upon the track that the company was required'to build the fences. Whether, after once getting upon the track, through the negligence of the company, they wandered to a road-crossing before being struck by the locomotive, is wholly immaterial. ” The converse of Judge Lawrence’s last proposition must be equally true.
The defendant’s counsel has made various other points, but I do not deem it necessary to consider them. The case was tried throughout upon a false theory, and the judgment must consequently be reversed and the cause remanded.