27 Mo. App. 578 | Mo. Ct. App. | 1887
This was an action for double damages on account of the killing of six of plaintiff’s cattle.
The question in the case was as to the duty of the defendant to fence its railroad where it crossed a certain lane or road. This lane was not on the plaintiff’s land, and with it he had no connection or relation whatever. The court gave the following instruction, among others, for the defendant:
“3. If the jury believe, from the evidence, that the road, or open space, by which the cattle went on to
And, in another instruction, the court told the jury to find for the defendant if they believe the cattle in suit were killed at the crossing of a public or private, road.
There was no pretense that the lane in evidence was a statutory private road, established in accordance with the provisions of the statute in relation to private roads. In this state it is the duty of évery railroad company to erect and- maintain fences along the sides of its railroad, “everywhere outside of towns and cities,. except at-public crossings and depot grounds.” Morris v. Railroad, 79 Mo. 370; Boyle v. Railroad, 21 Mo. App. 424. The exception, as to public crossings, includes not only-highways de jure, but also highways de facto. Brown v. Railroad, 20 Mo. App. 433; Luckie v. Railroad, 76 Mo. 642, The question is, does the exception include private roads % In Walton v. Railroad (67 Mo. 57), the-court does say: “A private road is a highway, a ‘ public highway,’ within the meaning of the fifth section of the damage act.” But the context clearly shows that all the court meant was, that a private road, established in accordance with the provisions of the statute concerning private roads, is a highway. The court expressly bases the' statement, above quoted, on the provision of the statute, referred to, to the effect that a private road is free to be traveled by all persons as a public road. And the court, in arguendo, says : “ The phrase [of the damage act] ‘public highway,’ is a
Judgment reverseu, and cause remanded.