Boyle v. Missouri Pacific Railway Co.

Philips, P. J.

— I. The statement in this case, on which the judgment was rendered, fails to state facts sufficient to constitute a cause of action. It is not averred that the place where the cow went upon the railroad track was where defendant may have inclosed the road with a lawful fence. It is only averred that the road “was not inclosed with a lawful fence.” This is not sufficient. Russell v. Ry. Co., 83 Mo. 507 . The demurrer to the pleadings and evidence, interposed by defendant, should, therefore, have been sustained.

II. As such defect in the statement is amendable, and would likely be corrected on remanding the cause, it is proper and just to the parties that another question, of controlling importance, raised on this appeal should now be considered and determined.

Appellant contends that as this is an action, in common form, for the recovery of single damages predicated of the negligence of defendant, the doctrine of contributory negligence on the part of the plaintiff is applicable ; and that as the only negligence chargeable or claimed against the defendant is its omission to have fenced where it might have fenced, and as the plaintiff *421 •confessedly was acting in violation of a public statute forbidding Mm to so turn Ms cow upon the commons, he himself was such wrong' doer, contributing directly to Ms own injury, on principle, he ought not to recover. We confess there is much of justice and reason to support this contention, and it presents a question not free from embarrassment under our statute laws.

Prior to the enactment of the statute of 1883 (Laws of Mo. 1883, pp. 26-28), the law "was settled, by repeated decisions, that it was not contributory negligence for the citizen to turn his stock upon the commons in the vicinity of a railroad, although he knew at the time the road was not fenced at that point. Gorman v. Ry. Co., 26 Mo. 441 ; Turner v. Ry. Co., 78 Mo. 578 ; Davis v. Ry. Co., 19 Mo. App. 425.

By the act of 1883, supra, section one, it is declared to be unlawful for the owner of any animal or animals, of the species of horse, mule, ass, cattle, swine, sheep, or goats, in this state, to permit the same to run at large outside the inclosure of the owner of such stock. The statute authorizes any person, finding such animals running at large, to take them up and restrain them, and they may be treated as strays ; and the owner shall be answerable for all damages done to any person by reason of such animals running at large. Section five of the act declares that: “It shall not be necessary for any person to fence against any of the species of domestic animals ■enumerated in this chapter, and it shall be no defence to any action or proceeding brought or had, that the party taking up such stock did not have his lands inclosed with a lawful fence; but nothing herein contained shall be construed to lessen or interfere, with the obligations of the ■several railroads in this state to fence the right of way of such railroads, as is now provided by law.”

This statute, as applied to the state of facts presented In this record, does not seem to have been directly passed upon by the appellate courts of this state. In Stanley v. Ry. Co. ( 84 Mo. 625 ), the supreme court held that *422 this stock law, so called, did not apply to an action based on section 809, Revised Statutes, known as the double damage section of the railroad law, so as to exempt the-railroad corporation from the double liability imposed by that section for damages, resulting from its failure to fence its road, where required. This decision was followed by this court in Morrow v. Ry. Co. ( 17 Mo. App. 103 ).

Aside from other considerations, the law seems to-, be that it can make no difference whether the negligence of the injured party contributed to the injury or not.. Its enforcement concerns the public, in which the violation of the one statute by the complainant is subordinated to the greater good to result to the public by enforcing the penalty. Pittsburg, etc., Ry. Co. v. Methnen, 21 O. St. 593; Trice v. Ry. Co., 49 Mo. 440 ; Barnett v. Ry. Co., 68 Mo. 62 .

The nearest approach to a consideration of the question involved by the supreme court of this state is in Bowman v. Chicago & Alton Ry. Co. ( 85 Mo. 533 ). That was an action for single damages. The imputed liability of the railroad company sprang from, defendant’s violation of an ordinance of the city of Louisiana, which prohibited railroads from running their-engines and cars, within the corporate limits of the city, at a greater rate of speed than six miles an hour.. Plaintiff’s hog was killed within the corporate limits of the city, by defendant’s train of cars, while the cars were running at a forbidden speed. Defendant interposed as a defence another ordinance of the city, which made it unlawful for any hogs to run at large within the-said corporate limits. The evidence showed that the hog was at large within the city limits when killed. But plaintiff, in rebuttal, testified that he had his hog up in a good pen, from which it had escaped without his knowledge or consent. The supreme court sustained an instruction to the effect, that defendant was liable, notwithstanding the hog was so running at large ; provided *423 the jury further believe that the hog was so penned up, and escaped without the knowledge or consent of plaintiff. In support of its holding it cited and relied upon the decisions of the supreme court of Iowa in Spence v. Ry. Co. ( 25 Ia. 139 ), and Fritz v. Ry. Co. ( 34 Ia. 337 ); which hold that where a railroad company is liable for injury to swine occurring at a place where the road had failed to fence its line, the fact that swine were prohibited from running at large would not relieve the road, unless it appeared that such injury was occasioned by the wilful act of the owner. By the reference to and approval of the decision of the Iowa court we feel constrained to conclude that the construction placed by that court, in following to its logical conclusion the decision made in Spence v. Ry. Co., upon the purport of the language, the wilful act of the owner, should also be followed. In the latter case of Krebs v. Ry. Co. ( 21 N. W. Rep. 131 ), the court re-affirm the ruling in the Spence case, and hold that the fact of the owner merely permitting Ms live stock to run at large, is not sufficient proof that the injury was occasioned by the wilful act of the owner. The court say: “This implies something-more than mere negligence. It is an act in some way connected, with the injury; such as driving the live stock upon the track; as permitting it to escape for the purpose of going upon the track, or the like.”

It is observable that in the opinion in the Bowman case the supreme court gave no attention to the fact that the decision of the Iowa court is based largely upon the language of the local statute. It is left for us to conclude, therefore, in justice to the court, that it did not regard the phraseology of the Iowa statute as affecting the principle of construction.

It being so held in respect of the purport of the city ordinance of Louisiana, it occurs to us that the reasons for giving a like construction to our statutory provisions, are much more cogent and defensible.

Section 809, Bevised Statutes, was section forty- *424 three in the older statutes. Under section forty-three, as is well known to bench and bar in this state, railroad companies were not required absolutely to fence their tracks at all places outside of municipal corporations, stations and public road crossings. They were required to do so only where “the same passes through, along or adjoining inclosed, or cultivated fields, or uninclosed prairie lands.”

In the revision of 1879, section 809, the word “prairie” is omitted; so the statute reads: “or uninclosed lands.” Under the former section, forty-three, railroads were not required to fence where the road ran through uninclosed timber lands. By section 809, present statute, they must fence where the road passes through uninclosed lands, whether timber or prairie, or otherwise.

As the law stands, railroad companies, in short, are required, under penalty, to inclose their roads with a lawful fence, at all points outside of incorporated towns, except at public road crossings, and about their railroad stations, etc.

It, therefore, occurs to us, since the revision of 1879, that the limited construction given to section five, in what was known as the “damage act” of-the older statute, now section 2124, Revised Statutes, ought not longer to obtain, to the extent, at least, as heretofore. Rules of construction should cease with the reasons that gave them birth. The proviso in section 2124, that it shall not apply “to any accident occurring on any part of such road that may be inclosed by a lawful fence, or in the crossing of any public highway,” has been held as merely designed to furnish an inducement to the railroad .to fence their tracks where the law had not deemed it necessary to compel them to do so. Tiarks v. Ry. Co., 58 Mo. 50 . As the statute now stands there is no place, at least outside of incorporated towns and cities, as when section five of the old “damage act” was enacted, where the roads may fence, where they are not also required to fence. This being so, it is not easy to conceive *425 of an instance in which, a party may recover single damages under section 2124 based, as this case is, on an injury occasioned outside of such municipal corporation, where he could not recover double damages under section 809.

Unquestionably a party may now sue for single damages, as heretofore, under section 2124; and the same proof, as heretofore, will enable him to recover.

In this view of the statute we encounter no difficulty in applying the proviso contained in section five of the stock law of 1883 to this action, where the injury •occurred at a point where the defendant is required to erect and maintain a fence. By the proviso the stock law shall not be construed to lessen or interfere with the obligations of the several railroads in this state to fence the right of way of such railroads, as is now provided by law.

When the act of 1883 became a law it was provided by statute (section 809, General Statutes), that this defendant should enclose its road at the point where this injury occurred. In not so fencing it neglected a public duty, and exposed itself to an action for damages resulting therefrom; and, therefore, the imputed negligence was established by proving the point of injury, and the absence of such fence; and the act of 1883 constitutes no defence.

We feel the more persuaded to this view since the supreme court have held that the stock law of 1883 does not prevent a recovery under section 809, Bevised Statutes. "For if it should be held that the act of 1883 applied to actions brought under section 2124, Bevised Statutes, the ruling would involve, it seems to us, the grossest absurdity, in giving’ the citizen, violating the statute of 1883 by turning his animals at large, double the value of it when he sues under section 809, and nothing when he sues under section 2124. Such a rule would well be calculated to excite wonder, if not deserved ridicule. It certainly is not to the interest of the railroads that suitors should be compelled by such construe *426 tion to bring their actions under the double liability section rather than the one giving single damages.

For the defect in the statement, the judgment of the circuit court is reversed, and the cause remanded.

All concur.