33 Mo. App. 677 | Mo. Ct. App. | 1889
The question presented for decision in this case is this: In a suit brought under section 2124, Revised Statutes ( section 5 of the old damage act), can the action be defeated on a showing by the railroad company that the train which killed the animal was at the time being run in a careful and prudent manner, and that the injury was not caused by any negligence or want of care and skill on the part of the servant of the company at the time in charge of the train % We think not.
To permit such defense would, it seems to us, be opposed to section 2124 in word and spirit. The section reads, “ When any animal shall be killed or injured by the cars, etc., used on any railroad in this state, the owner of such animal may recover the value thereof in an action against the company without any proof of negligence, unskillfulness, or misconduct ón the part of the officers, servants or agents of such company; but this section shall not apply to any accident occurring on any portion of such road that may be enclosed by a lawful fence or in the crossing of any public highway.” It is admitted that the place where plaintiff’s cow was killed did not come within the places excepted from the operation of this section by the last clause thereof, that she was killed where the track may have been fenced, although not at a place required in terms to be fenced as provided by section 809 (the old forty-third section) of the general railroad law.
We can’t give effect to the provisions of this section 2124, which in effect declares a liability of a railroad company on the concurrence of, first, the killing of the animal, and, second, at a point where the track is not,
We are unaided in the decision of this question by any ruling of other courts on this or a like statute. In none of the cases so numerously cited by counsel on both sides has this point been passed on. Defendant’s learned and industrious counsel, in their brief, quote repeatedly from the supreme court of this state such expressions as, “ That section 2124 simply dispenses with the proof of negligence in the first instance,” etc., 66 Mo. 571, and again of the “ prima-facie case” made by proof of the killing of the animal on the track where not fenced, etc. 90 Mo. 134. But in no case that we have been able to examine was it ever claimed by counsel, or held by the court, that this case made, in the'firsi instance,” this '■‘■prima-facie case,” could be destroyed
The trial court committed no error in refusing, defendant’s instructions, and as it appears to us the case was tried upon the proper theory and construction of the statute, the judgment must be affirmed. Ellison, J., did not sit in this case.