Burton v. North Missouri Railroad

Napton, Judge, delivered the opinion of the court. The fifth section of the statute concerning damages in the revised code of 1855 provides that “ when any animal or animals shall be killed or injured by the cars, locomotive, or other carriages used o'n any railroad in this state, the owner of such animal or animals may recover the value thereof in an action against the company or corporation running such railroad, without any proof of negligence, unskilfulness or misconduct on the part of the officers, servants or agents of the company ; but this section shall not apply to any accident occurring on any portion of such road that may be enclosed by a lawful fence, or in the crossing of any public highway.” (R. C. 1855, p. 649.) The fifty-second section of the general railroad law declares “ that every corporation formed under this act shall erect and maintain fences on the side of their road where the same passes through enclosed fields, of the height and strength of a division fence required by law, with openings [375] or gates or bars therein and farm crossings of the road, for the use of proprietors of lands adjoining such railroad; and also construct and maintain cattle-guards at all road crossings, suitable and sufficient to prevent cattle and animals from getting on to said railroad. Until such fences and cattle-guards shall be duly made, the corporation and its agents shall be liable for all damages which shall be done by their agents or engines to cattle, horses, &c., thereon; and after such fences and guards' shall be duly made and maintained, the corporation shall not be liable for such damages unless negligently or wilfully done.” (R. C. 1855, p. 437.) By the fifth section above referred to, the railroad company is made responsible .for injuries to horses or cattle, without regard to the question of diligence or negligence, unless the injury occurs in enclosed fields or at a road-crossing. The fifty-second section of the general railroad law makes the same provision in relation to all corporations affected by that law, and also furnishes an explanation of the object of the legislature. The railroad companies are required to fence up their roads, where they pass through enclosed fields, and to construct cattle-guards where they cross the public highway. When this is done they are not responsible for accidents; there must be negligence or misconduct on the part of their agents to make them responsible for injuries to cattle or other, animals. This suit is brought under the fifth section of the act concerning damages. The injury is described and it is averred that it occurred on a portion of the road not enclosed, and that it did not happen at a road-crossing. This, in our opinion, was sufficient. It was not necessary to aver negligence. It is not material whether the fifty-second section of the general railroad law applies to the North Missouri Railroad Company or not. The inquiry presented in this case is not whether the company was bound to construct cattle-guards and put up fences, but whether in fact the injury happened where such cattle-guards and fences had been made. The company may be at liberty to omit these precautions against [376] accidents, if they prefer to take the risk rather than encounter the expense. The statute is positive that they must pay all damages when they fail to use these precautions, without any question as to whose fault may have led to the accident. If they enclose their road with fences or cattle-guards, so as to prevent stock from getting on the road, the law does not hold them responsible, except in cases of negligence or wanton injuries. It will be seen that the instructions asked in this case had no application whatever to the case charged or proved, and were therefore properly refused. Judgment affirmed. The other judges concur.