Jenkins v. Chicago & Alton Railroad

Hall, J. This was an action for double damages on account of the killing of six of plaintiff’s cattle. The question in the case was as to the duty of the defendant to fence its railroad where it crossed a certain lane or road. This lane was not on the plaintiff’s land, and with it he had no connection or relation whatever. The court gave the following instruction, among others, for the defendant: “3. If the jury believe, from the evidence, that the road, or open space, by which the cattle went on to [582] defendant ’ s railroad, liad been kept open and used as a - private outlet or way for the convenience oí her farm by the owner of the land over which the same ran, and had been open and used for more than ten years before-the cattle were killed, and was fenced on both sides for a space extending north and south of the railroad extending to a public road on the south, then the same was a private road, and defendant had no right, and it was not its duty, to fence the same, and the verdict must be for the defendant.” And, in another instruction, the court told the jury to find for the defendant if they believe the cattle in suit were killed at the crossing of a public or private, road. There was no pretense that the lane in evidence was a statutory private road, established in accordance with the provisions of the statute in relation to private roads. In this state it is the duty of évery railroad company to erect and- maintain fences along the sides of its railroad, “everywhere outside of towns and cities,. except at-public crossings and depot grounds.” Morris v. Railroad, 79 Mo. 370; Boyle v. Railroad, 21 Mo. App. 424. The exception, as to public crossings, includes not only-highways de jure, but also highways de facto. Brown v. Railroad, 20 Mo. App. 433; Luckie v. Railroad, 76 Mo. 642, The question is, does the exception include private roads % In Walton v. Railroad (67 Mo. 57), the-court does say: “A private road is a highway, a ‘ public highway,’ within the meaning of the fifth section of the damage act.” But the context clearly shows that all the court meant was, that a private road, established in accordance with the provisions of the statute concerning private roads, is a highway. The court expressly bases the' statement, above quoted, on the provision of the statute, referred to, to the effect that a private road is free to be traveled by all persons as a public road. And the court, in arguendo, says : “ The phrase [of the damage act] ‘public highway,’ is a [583] tautological expression. A highway is a passage, road, or street, which every citizen has a right to use, and is, therefore, necessarily public. The road in question was a highway, and could not be fenced by the defendant. ‘ Private roads ’ are so termed by the statute to distinguish them from public roads, which are maintained at the public expense.” The section of the statute concerning private roads, referred to by the court, is as follows : “ Such road, token established, shall be free to be traveled by all persons as a public road, and the county court shall have power at any time, when it considers it of sufficient public utility, to adopt said road as a county road, and have it kept in repair as other county roads.” Rev. Stat., sect. 6982. This section applies only to private roads established under the statute. There is nothing in Walton v. Railroad (supra), intimating a contrary opinion. A mere private road, which the public neither has the right to use nor is actually using as a highway, the railroad company is in duty bound to fence across. As said in Rorer on Railroads: “Though a railroad corporation which, by the statute, is required to fence its road, under penalty of paying for injuries thereon inflicted upon live stock, is neither required nor authorized to fence public crossings or highways, or places of public resort, it is nevertheless its duty to fence across private ways where they cross over its road, the same as in other places, or else to place safe gateways thereat.” (Vol. 1, p. 495). Unless the lane, in proof, was a highway de jure or de facto, it was the duty of the defendant to have fenced across it. The court should have instructed the jury to this effect. Judgment reverseu, and cause remanded. All concur.