49 Mo. 199 | Mo. | 1872
delivered the opinion of the court.
The plaintiff brought suit under the fifth section of the damage act (Wagn. Stat. 520) for killing her cow, and showed that at the place where the carcass of the- cow was found, the road was not fenced; but it appeared that there was a fence on the south
By refusing to give this instruction in connection with the evidence and other rulings, the court held that the railroad company was under obligation to fence its track at its passenger and freight depots, without regard to the inconvenience thereby caused to those who operated the road or to the public ; and that, unless such fence was made, the company was liable to pay for all animals killed, without regard to the question of negligence.
This view might be warranted by a literal interpretation of the statute. It provides in general terms that when any animal shall be killed by the cars, etc., the owner may recover its value without any proof of negligence, but that the provision shall not apply to any accident occurring where the road is inclosed by a lawful fence, or in the crossing of any public highway. But such interpretation would hold railroad companies to this extraordinary responsibility unless they should fence up their tracks in towns and villages and at all their places of doing business ; in a word, it would obligate them to commit a public nuisance, and to render it inconvenient or impossible to transact their business — to .perform, indeed, the office of their creation. The statute should receive no such unreasonable construction, but should be interpreted in connection with section 43 of the chapter concerning railroads (Wagn. Stat. 310-11), which obligates railroad companies, among other things, to fence their road where it passes through or along cultivated fields or uninclosed prairie lands. It might extend even further than that, but it cannot receive the construction given it by the court below.
This proceeding was instituted before a justice of the peace, and under the general statement of the cause of action the plaintiff would be entitled to recover if she could show actual negligence by which her property was destroyed. To enable her to-do this, in reversing the judgment the cause will be remanded.