150 Mo. App. 566 | Mo. Ct. App. | 1910
This is a suit in the nature of a qui tarn action for a statutory penalty. Relator is prosecuting attorney. He recovered andi defendant appeals.
It appears Ashford owns a farm in Lewis county through which defendant railroad passes. There is a public road adjacent to this farm on which defendant maintains a public crossing and the evidence is that defendant’s trains frequently passed over the same without either sounding the whistle or ringing the bell as the statute requires. Because of a railroad cut there, which obstructs the view, it is important the signals required should be given upon approaching the crossing. Ashford testified that to the end of enforcing the obligation of the statute, he made some observations on the day named in the information and defendant’s train approached and passed the crossing without either sounding the whistle or ringing the bell. The statute (sec.. 1102, Revised Statutes 1899, sec. 1102, An. St. 1906), requires the bell on locomotives shall be rung at a distance of at least eighty rods from the place where the railroad shall cross any traveled public road and be kept ringing until it shall have crossed such road, or a steam whistle attached to. such
It will be observed that the statute enjoins the obligation to ring the bell or sound the whistle on approaching the crossing of “any traveled public road.” Testimony for relator is to the effect that the road involved here and the one on which defendant had established the crossing was a public road but it is not expressly stated in the evidence to have been a “traveled public road.”
The only point made on appeal for reversal of the judgment is that there is no evidence in the case showfing the road to be such as contemplated by the statute. It may be conceded that the statute is penal and must therefore be strictly construed. It is essential, too, that the' proof shall be sufficiently specific to make a case within its provisions. [State to use, etc., v. C. R. I. & P. R. Co., 19 Mo. App. 104; Bauer v. K. P. R. Co., 69 Mo. 219.] But we do not understand that it was incumbent on relator to produce the records of the county court and show the public road- involved was established by legal proceedings to that end. Such statutes apply as well to roads established by user or prescription as they do to those established by legal proceedings. Such has been decided in many cases. See Lee v. St. L. & S. F. R. Co., 146 Mo. App. 696, 129 S. W. 773; Sikes v. St. Louis & S. F. R. Co., 127 Mo.
This case is to be distinguished from that of State v. C., R. I. & P. R. Co., 19 Mo. App. 104, relied upon by defendant, for the reason there was no evidence in that case to the effect that the highway was a public road. In that case the witnesses- merely spoke of a road crossing east of the depot. Of course, there may be a road crossing which is not a public road crossing; for instance, there may be a crossing of a mere private road and, of course, such would not fall within the provisions of a penal statute which by its express terms purports to apply to public roads, as the obligation of such a statute may not be extended by implication or construction.
But it is said though the proof is sufficient prima facie as to the fact that the road was a public road, there is no evidence that it was a “traveled public road.” This is true. By employing the words “traveled public road,” the Legislature obviously intended to affix the duty of ringing the bell or sounding