81 Mo. App. 78 | Mo. Ct. App. | 1899
The defendant operates an electric railway line between Kansas Oity and Independence, and the question is, whether or not it is answerable in double damages for stock escaping onto the track and killed where the right of way is unfenced. It is conceded that plaintiff’s mare strayed upon the tracks of the road at a point about -half way between Kansas City and Independence, and was there run over and killed by one of defendant’s electric cars. It is also admitted that the place where the mare got upon the track was such that it ought to have been fenced, if section 2611 of our corporation statute applies. On a trial by the circuit court, without a jury, the defendant was held liable for double the value of the animal killed and an appeal was taken to this court.
The statute in question provides, that “every railroad corporation formed or to be formed in this state, and every corporation formed under this article, or any railroad corporation running or operating any railroad in this state, shall erect and maintain lawful fences on the sides of the road where the same passes through, along or adjoining inclosed or cultivated fields or uninclosed lands,” etc., and then provides that for a failure to so fence, the corporation shall be liable for double the amount of damages resulting from such failure. The point for decision here is, whether or not, under the circumstances, the defendant is amendable to the provisions of this statute.
The road in question is quite a different thing from that just described. It is not strictly local in its character; it is not used to carry passengers from corner to corner, or from one section or portion of a city to another, or to transport persons from “down town” to and from the suburbs; it pays little attention to streets and roads but takes its course through the country just as any other railroad. It is a means of transporting persons from one city to another — its western terminus being at or near the eastern limits of Kansas Oity, and its eastern terminus the public square at Independence. It is rural rather than urban. It receives and discharges passengers at regular stations or depots much after the fashion of
Under the deed executed by the special master in the foreclosure suit, there was conveyed to the defendant, “the railroad, premises, property and franchises” of the said Kansas City & Independence Company. The defendant then became subrogated to all the rights of its vendor, and along with the “railroad, premises, property and franchises” thus acquired, said Metropolitan Company assumed the obligations pertaining thereto, among which was to maintain and operate
That defendant has changed tbe motive power from steam to electricity can make no difference; it still remains a railroad within tbe meaning of tbe act. Booth on St. Kys., sec. 1, and notes. Tbe, law was intended as a protection to stock and to human life. Tbe change from steam power to electricity -may lessen tbe chances for accident, but, as tbe present case'shows, has not rendered tbe operation of tbe road entirely safe. Tbe danger still remains, though possibly in a less degree.
We approve tbe action of tbe lower court and its judgment will be affirmed.