90 Mo. 127 | Mo. | 1886
This suit originated in a justice’s court in Scott county, and the following is the statement of his cause of action filed by plaintiff with the justice:
“ Plaintiff states that defendant is an incorporated company under the laws of the state of Missouri; that on the twenty-eighth day of September, 1882, it was the owner of, and operating, a railroad with cars and locomotives, and that on the day and year last aforesaid, within the corporate limits of the village of Oran, in Sylvania township, in Scott county, at a point on the track of defendant’s railroad where there were no fences, and where
This is an appeal from the judgment of the circuit court .in favor of plaintiff, and the first point made by appellant’s counsel is, “that the statement fails to allege that the mare entered upon defendant’s road at a point where the same was, by the statute, required to be fenced.” The statute contains no such restriction upon the right of the owner of the injured cattle to recover. It provides that when any animal is killed or injured, by the cars, etc., used on any railroad in this state, the owner of such animal may recover its value in an action against the company ‘ ‘ without any proof of negligence, * * 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.” Sec. 2124. Does the proviso mean that the section shall not apply to an injury occurring on a portion of the road which the defendant had the option to fence or not, but had left unenclosed %
In Tiarks v. Railroad, 58 Mo. 45, this court said.: “ The fifth section of the damage act (now section 2124) was designed to furnish an inducement for the roads to fence their tracks where it was not deemed absolutely necessary to compel them to do so. By that section, if the road is not fenced and animals are killed at a place where the law does not require fences to be erected,' the
The words “may be enclosed ” in the proviso mean no more than that the company should not be held under that section, if, in fact, the road, at the point where the accident occurred, was enclosed by a lawful fence. It was not intended to restrict its application to ■cases of injury occurring at points where the companies are required to fence, but is general, giving the right to sue,. under that section, for an injury occurring anywhere on the road, except where it was enclosed by a lawful fence or crossed public highways. When the injury occurs at an unfenced portion of the road, which the statute requires the company to fence, the owner of the ■cattle injured has the option to sue for double damages under the old forty-third, now eight hundred and ninth section, or to sue under the fifth section of the damage net, now section 2124, for single damages.
The advantage of suing under the latter lies in the quantum of proof required, plaintiff making out a prima facie case by proof that the animal got upon the track and was killed where it was not enclosed. The section, to that extent, is but a modification of the common law,
Nor is the statement defective in not alleging that the mare was injured in consequence of the failure of defendant to erect fences. In a suit for double damages under section 809, this averment has been held to be necessary, because the section imposes a liability upon railroad corporations in double the amount of damages “which shall be done by its agents, etc., to horses, cattle, etc., on- said road * * * occasioned by the failure to construct or maintain such fences and cattle guards.”
As to the contention of appellant’s counsel, that it devolved upon plaintiff to show some connection between the omission to fence and the injury complained of, the ■ cases cited have no application. The following instruction, given for plaintiff, is complained of: “ The court instructs the jury that if they find from the evidence that the defendant, by its agents or servants, in the month of September, 1882, run its train of cars over or against plaintiff’s mare within the corporate limits of the village of Oran, at a point on said road that was not in the crossing of a public highway, and at a point of territory adjacent to said corporate limits where there were no streets crossed by the defendant’s road, then plaintiff is entitled to recover of defendant the value of said mare as shown by the testimony, not exceeding one hundred dollars, without any proof of negligence, unskillfulness or misconduct on the part of the officers, servants or agents of the defendant.
The defendant had the right, if the facts stated in the instruction existed, to fence its road where the injury occurred in the village of Oran. Ells v. Railroad, 48 Mo. 231; Wymore v. Railroad, 79 Mo. 247. The statement contained all the allegations required in an action based upon section 2124, and the allegation of
The judgment is affirmed.