Clardy v. St. Louis, Iron Mountain & Southern Railway Co.

73 Mo. 576

• Court: Supreme Court of Missouri
• Decided: April 15, 1881
• Status: Published

Opinion

Hough, J.

This was a suit under the 43rd section of the railroad corporation act. The statement is like that in the case of Key v. Railway Co., ante, p. 475, which was held to be sufficient.

There were defective fences on both sides of the road where the hogs were killed, but it does not appear that the hogs got on the track in consequence of the failure of the defendant to erect fences where by law it was required to erect them, nor does it appear that at the place where the hogs were killed the defendant was required to erect fences —non constat, but that they were killed at a point on the road where the company could lawfully fence, but was not by law required to fence. Edwards v. Hannibal & St. Joseph R. R. Co., 66 Mo. 567.

It is further objected that it does not appear from the testimony that the defendant knew, or by the exercise of reasonable diligence could have known of the defect in the fence, and that a reasonable time had elapsed after the acquisition of such knowledge, or after the time at which such knowledge should have been acquired, in which the-company could have repaired the same. After fences have-once been erected as required by law, the company is only liable for a negligent failure to maintain such fences, and it is, therefore, entitled to a reasonable time, in which to-make repairs, after having knowledge of a defect therein, or after that period has elapsed, in which, by the exercise-of reasonable diligence it could have had knowledge of such, defect. Shearman & Redfield on Neg., § 459, and cases there cited. The judgment will be reversed and the' cause remanded.

All the judges concur.