60 Mo. 405 | Mo. | 1875
delivered the opinion of the court.
This action was brought before a justice of the peace, on the 20th day of July, 1872, under the fifth section of the act of the General Assembly concerning “ Damages and Contributions” to recover damages for the killing of certain stock of plaintiff, by the cars used on the defendant’s railroad, at a point on said railroad where the same was not fenced.
The section of the statute under which the action was brought is as follows: “§ 5. When .any animal or animals shall be killed or injured by the cars, locomotive or other carriage, used oii any railroad in this State, the owner of such ■ animal may recover the value thereof, in an action against the company or corporation running such railroad, without any proof of negligence, nnskillfuluess or misconduct, on the part ef 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 inclosed by a lawful fence, or in the crossing of any public highway.”
The cause of action filed by the plaintiff before the justice has four counts : one for the value of a cow alleged to have been killed by the defendant on the 8th day of May, 1871; one for the value of two liogs ; and the other two counts each for the value of one hog killed on different days, the last killing being charged to have been done on the 13th day of June, 1871. This suit was commenced in July 1872.
The different counts in the petition were in the usual form, and bring the cause of action stated within the language of the statute.
The plaintiff recovered a judgment before the justice for $37. From this judgment the defendant appealed to the Linn Circuit Court, where, upon a trial, a new judgment was rendered in favor of the defendant.
The plaintiff filed a motion for a new trial setting forth the usual causes. The court overruled said motion and rendered a final judgment in favor of the defendant.
To this action of the court the plaintiff excepted and filed his bill of exceptions and has appealed tq this court.
It is shown by the evidence in the case that at tlie time named in the petition, at the town of Meadville, a locomotive and train of cars belonging to defendant, when approaching the defendant’s depot at said town from the east, ran over and killed a cow belonging to the plaintiff worth twenty dollars; that the cow was killed at a point on defendant’s railroad, about eighty yards east of the defendant’s depot at said town, and where the road was not fenced. The cow was killed in the day time by a passenger train; that there was no street or public crossing where the cow was killed.
The evidence further shows that the part of the town where the cow was killed was laid off into streets, blocks and lots, and that the town contained about three or four hundred inhabitants.
It was admitted by the defendant, by its attorney, that within six. mouths after the cow aud hogs were killed, plaintiff commenced his suit against defendant before E. D. Harvey, a justice of the peace, within and for Parson’s Creek Township, Linn County, Missouri, for damages for killing said stock, and that after judgment the case was taken by appeal to the Common Pleas Court of Liun county, and that at the May Term of said court, for the year 1871, plaintiff took a voluntary non-suit.
At the close of the evidence the plaintiff asked the court to give the jury the following instruction : “ If the jury believe from, the evidence that defendant, by its servants or agents, ran its engines or cars over, on, to or against plaintiff’s cow and killed her at Parson Creek Township, in Linn County, Missouri, at a point on its road where the same was notfeneed, and where there was no public street or crossing, they are bound to find.for the plaintiff on the first count in the complaint; aud in this case it makes no difference whether the cow was killed in the town of Meadville or not, provided they further believe that said town was not incorporated at that time.” ...
A similar instruction to the one just copied was asked for as to the three other counts in the plaintiff’s cause of action. All of these instructions were refused by the court aud the plaintiff'excepted.
The court then at the request of the defendant, instructed the jury as follows: “ 1st. If the jury believe from the evidence that the stock sued for was killed in the town of Mead-ville, where the adjacent land is laid out into blocks, lots, streets aud alleys; that said streets cross the railroad at right
To the giving of these instructions by the court the plaintiffs objected and excepted.
It is first insisted in this court, by the plaintiff, that the court erred in refusing to give the jury the first instruction asked for by plaintiffs. It is assumed by said instruction that the defendant in order to save itself from the operation of the statute, under which the suit is brought, which makes railroad companies liable for animals killed on the road without any ' proof of negligence, etc., must show that its road is fenced even in a town or village where the land is laid out in blocks and lots, and into streets and alleys for public use, provided the town or village is not incorporated.
We do not think that this is a proper construction of the law as decided by this court. Whenever the land is regularly laid out into lots, blocks and streets, the streets crossing the railroad, which streets have been dedicated to public us© as public highways, it would be unlawful for the railroad company to fence up the streets in such a town ; and it would
It is also objected by the plaintiff that each of the instructions given in favor of the defendant was improper, and that therefore the judgment should be reversed.
There is no doubt about the correctness of the first instruc tion given for the defendant, if it was clear from the evidence that the town had been platted and recorded, as the statute provides, so as to dedicate the streets to public use.
The second instruction is a mere abstraction having no evidence even tending to support it.
The third instruction assumes that there was evidence tending to prove that the stock of plaintiff was killed in the platted and recorded limits of the town of Meadville, and that the streets, etc., were dedicated to public use, etc. There was no evidence in the case to show that any plat of said town had ever been made and recorded. The instruction was therefore for that reason wrong.
The question, however, is, did, or could, these instructions do the plaintiff any injury ? If the fourth instruction given on the part of the defendant was proper, the judgment must necessarily have been for the defendant regardless of anything that could have been found by the jury upon the matters contained in the other instructions. By the fourth instruction •the jury are told that unless this action was commenced with
The sixth section of the act under which this action was brought, provides-that “every action instituted by virtue of the preceding sections of this chapter, shall be commenced within one year after the cause of action accrued.” It is not denied by the plaintiff that more than one year elapsed from the time his stock was killed to the bringing of this suit; but he claims and it is admitted on the record that plaintiff sued for the same injuries within six months after the injuries were committed, and that after said suit had been for. some time prosecuted and appealed from a justice’s court to a higher court, he suffered a non-suit,'and that this suit was brought in less than one year after such non-suit.
The plaintiff insists that by virtue of the 19th section of the second article of the statute concerning the limitation of actions, he had a'right to bring a new action at any time within a year after said non-suit was suffered. The 19th section of said act provides that, if any action shall have been commenced within the times respectively prescribed in this chapter,, and the plaintiff therein suffer a non-suit, etc., such plaintiff may commence a new action from time to time within one year after such non-suit suffered, etc. (Wagn. Stat., 919.)
By the 26th section of the same statute, it is provided as follows : “ The provisions of this chapter shall not extend to any action which is, or shall be, otherwise limited by any statute; but such action shall be brought within the time limited by such statutes.
It will be seen from the above quoted statutes, that the 39th seetion of our general limitation law has no application to an action brought under the fifth section of the Damage act; but that the action of the plaintiff was required to be brought in the time limited in the act under which the action was brought, just as much so as if no such provision as that contained in the 19th section of the general limitation act existed. ■ That seetion had no application to the plaintiff’s case ; and, therefore, the fourth instruction given on the part of the defend
The other judges concurring, the judgment is affirmed.