Giltz v. St. Louis Southwestern Railway Co.

Rombauer, P. J. The plaintiff recovered double damages for the killing of his mule by the defendant’s engine. The defendant appeals and assigns for error that under the conceded facts this judgment was erroneous, as the mule came upon the track and was struck at a place where the defendant was under no obligation to fence its road. Whether this contention is correct is the Only question presented for our consideration. The conceded facts are these: The county court of Mississippi county on the ninth day of May, 1894, made an order condemning the defendant’s right of way at the point in question for a public road, and ordered the road overseer to open the road. No copy of this order was served upon the defendant, or upon the road overseer. The defendant, however, had either previous to this, or immediately thereafter, fenced its right of way so as to recognize the place in question as a public road, running its fences down on each side thereof and connecting them with cattle guards across its tracks. The mule in question was killed in July, 1894. At the date of the killing the defendant’s road was fenced as above, but neither the road overseer nor the defendant had taken any steps to establish a road crossing over the defendant’s tracks, nor was any signboard put up, as the law requires, indicating that the [447] place in question was a public road, nor did the company cause the steam whistle of the engine to' be blown, or the bell to be sounded, when its trains approached the place, until after the accident in question. TJpon this showing the defendant asked the court to give the following instruction: “The court declares the law to be that, if the county court of Mississippi county, Missouri, upon a proper petition of twelve householders and freeholders, regularly and legally ordered, established and opened, a public road across defendant’s railroad in May,-1894, at the place where the animal in question was killed in July following, then the defendant was not required to fence its road across the said public highway, and the defendant is not liable.” The court refused the instruction and found for the plaintiff. The court erred in both particulars. Section 2609 of the Revised Statutes provides that railroad companies shall construct proper road crossings at places where the railroad crosses public roads, and provides a penalty for their failure to do so. Section 2608 provides that a bell be rung or a whistle be sounded, when the engine approaches any traveled public road. If the company failed to comply with either of these requirements, and the injury to plaintiff’s animal was caused by such failure, the plaintiff had his remedy in another form of action, but he could not -sue the defendant under section 2611 for failure to fence its road, where it crossed a public road, which under all the evidence was a road dejure if not defacto. Railroads are not required, and in fact are not authorized to fence across a public road, whether such road be one de jure or de facto. Luckie v. Railroad, 76 Mo. 639; Roberts v. Railroad, 43 Mo. App. 287. As the conceded facts furnish no ground for the [448] recovery of double damages, we must reverse the judgment. The plaintiff’s proper course is to sue for single damages in a new action, as the evidence adduced indicates a right of recovery in an action in that form. All the judges concurring, the judgment is reversed.