107 Mo. App. 203 | Mo. Ct. App. | 1904
Plaintiff had a field on which a crop of corn was growing, inclosed by the same fence that inclosed the field of his neighbor. The neighbor’s field lay between him and the railway company’s right-of-way. The fence around the inclosure was good and sufficient; was, in fact, a lawful fence. "When the .railway company built its line, its servants threw down the fencing at various points and left it down without constructing cattle guards or fencing along its right-of-way. The consequence was that stock got in through the openings and destroyed plaintiff’s crop. Plaintiff sued for damages and obtained judgment.
The only contention made here that demands attention is that as plaintiff’s land does not adjoin the railway company’s right-of-way, he is not within the pro
In Berry v. Railway, 65 Mo. 172, the plaintiff’s animal went into the field of one Conger through which a railroad track passed, and from thence through a gap onto the right-of-way, where it was killed by a train. The contention was- made that Berry could not recover because his land was not adjacent to the right-of-way. It was held that the statute requiring railway companies to fence was primarily for the benefit of adjoining proprietors and that the cattle of a stranger which were on the premises of an adjoining proprietor without right, were not protected. It was held further that if the field adjacent to the railroad was sufficiently fenced, that was all the protection strangers were entitled to and as to them railway companies need not build a fence in that contingency. That case requires the field to be sufficiently fenced and such fence as between strangers and the railway conmpany satisfies the statute and relieves
“That if a railway company owns a road running through the inclosed and cultivated fields of A and does not have its road fenced as the law directs, it will not be liable for damages done to the cow of B, provided the fence along A’s field was a lawful fence. That, notwithstanding B’s cow got onto the company’s track from A’s field Where there was no fence between it and the railroad track, yet B could not recover unless he should show by the evidence that the outside fence around A’s field was not a lawful fence at the place where his cow entered A’s field.”
Peddicord was denied a recovery solely because there was no evidence to show there was not a lawful fence between his land and that of the adjoining proprietor.
Dean v. Railway, 54 Mo. App. 647, is a case precisely like this in its material facts. Dean’s cattle got out of his field and went through a field of Campbell, whose land adjoined the railway company’s right-of-way, and was killed by an engine on the track. It was claimed the judgment was wrong because the statute was only intended for the protection of adjoining proprietors and Dean could not recover. The opinion says:
“Assuming that Campbell and not Dean was the adjoining proprietor of the land from which the cattle went upon the track and yet there is no defense to this action. If the land east of the railroad and over which the cattle passed had! been inclosed by a lawful fence, then as to outside third parties it would be immaterial whether or not the railroad had fenced its right-of-way; for under such eircumstnces the fence of the adjoining proprietor would, as to outside parties, stand in lieu of a fence by the railroad company. If, however, the company failed to maintain a proper fence along its right-of-way where it passes through the lands of an adjoin
Now in the case at bar, instead of the plaintiff’s field and his neighbor Lewis’s being separated by a lawful fence, there was no fence between them. Lewis’s land ran up to the right-of-way and was enclosed by a lawful fence. Plaintiff’s field was two hundred and twenty yards west of the railroad and contiguous to Lewis’s field. Under these circumstances the railroad company was clearly liable for the damage done to plaintiff’s com crop by the cattle which got into the inclosure on account of its tearing down the fence around it and adjacent to the right-of-way; thus leaving plaintiff’s field exposed, whereas, before it was protected. The railway company after that had an unfenced right-of-way and was liable to Lewis or the plaintiff.
The cases above cited were all for killing stock; but the statute (section 1105) makes a railroad company liable in double damages not only for stock killed, but damage “done by reason of any horses, cattle, mules or other animals escaping from or coming upon said lands, fields or inclosures, occasioned in either case by the failure to construct or maintain such fences or cattle-guards. ’ ’
Judgment is affirmed.
