Talbot v. Minneapolis, St. Paul & Sault Ste. Marie Railway Co.

Cahill, J.

The plaintiff sued the defendant before Edgar J. Wiley, a justice of the peace of Chippewa county, for running over and killing a colt valued at 1100. The defendant appeared specially, and moved to quash the summons and the service thereof, because—

1. Edgar J. Wiley is not a justice of the peace in and for Chippewa county.

2. The return of the service and the service itself of said summons is insufficient and void.

3. This court has no jurisdiction to hear and determine this cause.

—Which motion was overruled. The summons was returned with the following certificate indorsed thereon:

ftI served the within summons on the 23d day of November, A. D. 1888, on the defendant by handing a copy to the station agent at Sault Ste. Marie, and deliving to him a copy thereof at the city of Sault Ste. Marie, within the said county.

“Wji. Hand, Constable.”

It is objected that this return does not show that the station agent upon whom service was made was the ,agent of the defendant. We see no force in this point. The statement is that the service was on the defendant by handing a copy to the station agent. This implies that the station agent was the agent of the defendant; ■otherwise the statement that defendant had been served was not true. The other grounds for the motion to ■quash were properly overruled.

Plaintiff’s declaration was as follows:

“ Plaintiff present, and declares orally against the defendant that, whereas, the defendant is a corporation owning and operating a railroad through the township of Bruce, county of Chippewa, and have been so operating .a railroad for over a year last past; that said company have not fenced said road at any place through said *70 township; that on the 18th day of September last the plaintiff was the owner of a certain horse colt of great value, to wit, of the value of one hundred (100) dollars, which was lawfully in said township, which colt went on the track of the said railroad, and was there killed through the negligence of said company, and because said track was not fenced, to the damage of said plaintiff one hundred dollars, and therefore he brings suit.”

The defendant demurred generally to the declaration, which demurrer was overruled, and the plaintiff recovered a-judgment for $70 and costs. The defendant appealed from the justice’s judgment, and on a trial in the circuit court the plaintiff again recovered judgment for $70. The defendant brings error.

The evidence showed conclusively that the plaintiff’s colt, about a year and a half old, was killed by freight train No. 40, passing over defendant’s road on the night of October 18, 1888; that the railroad track was not' fenced in the vicinity where the accident occurred; that plaintiff’s colt had escaped from pasture into the highway during the day without plaintiff’s knowledge, and following the highway down to the railroad track, and there being no fence to prevent, had entered upon the right of way, and wandered 40 or 50 rods up the track, where it was killed.

The only questions in the case are:

1. As to the sufficiency of the declaration.

2. Whether the plaintiff could recover upon a showing that the railroad company had failed to fence its track, and without other proof of defendant’s negligence.

We think the plaintiff’s declaration sets out a cause of action, and is as full as is usual or necessary in justice’s court.

It has been held repeatedly that when stock gets upon a railroad right of way by reason of the neglect of the railroad company to properly fence its track, and is *71 killed by a passing . train, no other negligence need be proved. Flint, etc., Ry. Co. v. Lull, 28 Mich. 510 ; G. R. & L. R. R. Co. v. Southwick, 30 Id. 444. This liability attaches to railroads in the Upper Peninsula. Marcott v. Railroad Co., 47 Mich. 1 .

We see no error in the record, and the judgment is affirmed, with costs.

The other Justices concurred.