Eaton v. Mississippi River & Bonne Terre Railway Co.

REYNOLDS, P. J.

— Plaintiff commenced this action before a justice of the peace by filing a statement, in which he set out that defendant, a railroad corporation owning and operating a railroad passing through Randolph Township, in St. Francois County, on April 18, 1915, and for a long time prior thereto, negligently and carelessly failed to erect, keep and maintain fences along the sides of its railroad where it passes through' uninclosed lands in Randolph Township, and that, on the above date, by reason of defendant’s negligence plaintiff’s mare strayed in and upon the railroad, became entangled in a trestle on the railroad and was killed, to plaintiff’s damage in the sum of $150, for which, with costs, he asks judgment.

The cause, appealed from the justice to the circuit court, was tried and submitted on an agreed statement of facts as follows, a jury having been waived:

“That on or about April 18, 1915 plaintiff owned a horse which he turned out of his lot between nine and ten o’clock of that night, and that same was injured and died from such injuries which resulted from said horse becoming entangled in and falling off one of the trestles of the railroad track of M. R. & B. T. Ry., that the last train over said road arrived at Leadwood at 7:35 p. m., on April 18th, and that the first train on said road on April 19 left Leadwood at 6:15 a. m. It is therefore agreed that the injuries to said animal were not caused by such animal being struck or frightened or in any way injured by any of the locomotives, trains, or cars of said defendant and neither was said animal led . or brought in or upon said railroad by any of the employes of said railroad company. It is further agreed that the trestle on said railroad was in ordinarily good shape, but that "said railroad and said trestle were unprotected and unguarded by fences 'and that the value of the mare was $150. ’ ’

■ Taking the cause under advisement the circuit court found for plaintiff and assesed his damages at the sum of $150, from which defendant has duly appealed.

It is earnestly insisted by learned counsel for appellant, that inasmuch as it does not appear that the animal was struck by a moving train, nor frightened while on the line, plaintiff cannot recover.

Learned counsel for repondent, however, contends that his action is not a statutory one b.ut is a common law action for injuries sustained by reason of the defendant failing to perform a statutory duty.

Section 3145 of the Statutes of 1909 makes it the duty of railroads operating in this State to erect and maintain “lawful fences on the sides of the road where the same passes through, along' or adjoining inclosed or cultivated fields or uninclosed lands, with openings,” etc., “sufficient to prevent horses, cattle, mules and all other animals from getting on the railroad,” and provides that until such fences, openings and gates are made and maintained, the corporation shall be liable “in double the amount of all damages which shall be done by its agents, engines or cars to horses, cattle, •mules or other animals on said road, or by reason of any horses, cattle, mules or other animals escaping from or coming upon said lands, fields or inclosnres, occasioned in either case by the failure to construct or maintain such fences or cattle guards.”

Section 3146 of the same statute provides that' whenever live stock shall go upon any railroad or .its right of way, and the railroad is not at such place or places inclosed by a good fence on both sides, such as is required by law, and the stock, by being frightened or run by any passing locomotive or train on the railroad, shall be injured or killed by or because of having run against the fence on either side,'or into any culvert, etc., the company shall pay the owner the damages sustained. This last section has no application here, but we quote it as it is referred to in several cases hereafter cited, where the question of frightening and killing or injuring stock has arisen.

In a multitude of cases decided by our Supreme Court and the Appellate Courts, it has been held that to recover the penalty given by this statute, the injury must be one which results from the engines or cars of the railroad company coming into actual physical contract with an animal which has, in consequence of the lack of fences, gates, and guards, strayed on the right of way and been killed or injured by such car or engine of the railroad. [See Gorman v. Pacific Railroad Co., 26 Mo. 441; Lafferty v. Hannibal & St. J. R. R. Co., 44 Mo. 291; Hughes v. Hannibal & St. J. R. R. Co., 66 Mo. 325; Seibert v. Missouri, K. & T. Ry. Co., 72 Mo. 565; Halferty v. Wabash, St. L. & Pacific Ry. Co., 82 Mo. 90; Foster v. St. Louis, I. Mt. & S. Ry. Co., 90 Mo. 116; 2 S. W. 138; Hill v. Missouri Pac. Ry. Co., 121 Mo. 477, 26 S. W. 576 (affirming the judgment of our court in the same case, as see 49 Mo. App. 520, l. c. 535), And in the Courts of Appeals in Geiser v. St. L., I. Mt. & S. Ry. Co., 61 Mo. App. 459, l. c. 462; Yeager v. Chicago, B. & Q. Ry. Co., 61 Mo. App. 594; Eggleston v. Kansas City Southern Ry. Co., 177 Mo. App. 346, 164 S. W. 169.] If, therefore, this was a statutory action to recover double damages as prescribed by the statute, undoubtedly the plaintiff in this case could not recover.

But, as claimed by plaintiff, the statutory action is not exclusive in providing a remedy for damages arising from the negligence of the railroad company in failing to fence or properly equip with gates and guards its right of way and track. Thus, in Hanlon v. Missouri, Pac. Ry. Co., 104 Mo. 381, 16 S. W. 233, an action to recover damages sustained by reason of a failure to observe certain municipal ordinances, it is said (l. c. 387):

“It is well settled that a failure to observe such reasonable and wholesome requirements constitutes negligence in itself (citing cases). Such negligence alone will warrant a recovery when it appears that obedience to the requirements of the ordinance would have prevented the injury, but not otherwise.” [See, also, Dahlstrom v. St. Louis, I. Mt. & S. Ry. Co., 108 Mo. 525, l. c. 538, 18 S. W. 919; Gratiot v. Missouri Pac. Ry. Co., 116 Mo. 450, l. c. 463, 21 S. W. 1094,] The same rule undoubtedly applies to violation or disregard of the provisions or requirements of a statute. [Lafferty v. Hannibal & St. J. R. R. Co., supra, l. c. 293.] That is undoubtedly the thought in the mind of Judge JOHNSON, speaking for the Kansas City Court of Appeals in McCaskey v. Quincy, Omaha & K. C. R. R. Co., 174 Mo. App. 724, 161 S. W. 277, and of our court in Dubray v. Chicago & A. Ry. Co., not to be officially reported but see 182 S. W. 1092, l. c. 1094, in citing the Eggleston and other cases.

As it is admitted in this case that the railroad was not fenced at all, and that in consequence of that, the mare got on the track and was killed by reason of becoming entangled, in and falling off the trestle, and as the failure and neglect to erect and maintain fences along the track was a violation and disregard of a statutory duty, plaintiff is entitled to recover the damages actually sustained.

The judgment of the circuit court is affirmed.

Allen and Beclcer, J. J., concur.