83 Mo. 496 | Mo. | 1884
This suit originated in a justice’s court in St. Francois county, and is for the recovery of double damages against the defendant, for stock killed on its road by a train of cars in consequence, as is alleged, of defendant’s failure to construct cattle guards at plaintiff’s farm crossing. From a judgment of the circuit court for plaintiff on appeal, defendant has appealed to this court.
The first point made by appellant’s counsel is, that the act giving to justices of the peace jurisdiction of all actions against railroad corporations in this state, for the recovery of damages for killing horses, etc., without regard to the value of the animal killed is unconstitutional. Art. 4, sec. 53, subdivision 17, is the provision of the state constitution which, it is contended, is violated
Appellant, also, makes the point that section 809, Revised Statutes, does not require railroad companies to ■construct cattle guards at private farm crossings. This question has never been directly considered by this court, ■except in the case of Fitterling v. Mo. Pac. Ry., 79 Mo. 504. There defendant was sued under section 809 of the Revised Statutes, for killing two mules belonging to plaintiff. The railroad ran through plaintiff’s field. It was enclosed by lawful fences, as required by the section, and defendant had erected gates for plaintiff at a farm crossing, but had constructed no cattle guards. Judge Sherwood delivering the opinion said: “And the place where the gate was hung, being a ‘farm crossing,’ neither cattle guards, nor cross-fences were necessary, since the law does not require their construction at such points. R. S. 1879, sec. 809. Evidence that no such cattle guards or cross-fences were built, did not strengthen plaintiff’s case, and was erroneously admitted.” Section 809 requires railroad companies to erect and maintain lawful fences on the sides of their roads where they pass through inclosed or cultivated fields, with openings and gates therein to be hung, etc., at all farm crossings of the road for the use of the proprietor, or .owner of the land adjoining such railroad, and also, to construct and maintain cattle guards where fences are required, sufficient to prevent horses, etc., from getting on the track.
The duty is to construct cattle guards where fences-are required, “sufficient to prevent cattle from getting on the railroad.” At public road crossings, cross-fences and cattle guards are necessary for that purpose. Where the road passes through an enclosed field and enters-upon village lots where the railroad cannot fence, cattle guards and cross-fences are necessary to prevent cattle from getting on the track where it passes through the field. But at a private farm crossing where the company is bound to hang gates for the convenience of the land owner or proprietor, cattle guards are unnecessary, because the fence keeps the cattle in the adjoining enclosure from getting on the track, if the gates are kept closed. So, if cattle guards and cross-fences were made at such farm crossings, cattle could not get from the field upon the track of the road, except at the crossing. The cattle guard and cross-fences would answer the same purpose there, that they accomplish at a public-road crossing.
A statute of the state of New York provided that every railroad corporation should maintain fences on the sides of its road, with openings, or gates, or bars therein,, and farm crossings of the road, for the use of the proprietors of lands adjoining such road and also construct and maintain cattle guards at ail road crossings, suitable and sufficient to prevent cattle and animals from getting-onto the railroad ; and in the case of Brooks v. N. Y. & E. R. R. Co., 13 Barb. 597, the Supreme Court of that state held-that: “The true reading of the section does not require the company to construct and maintain cattle guards at farm crossings of the road, but only at road■
This case was not, as respondent contends, overruled ■on this point by that of Corwin v. The N. Y. & E. R. R. Co., 3 Kernan 44. It follows that the judgment must be reversed and the cause remanded.
