Hamilton v. Missouri Pacific Railway Co.

87 Mo. 85

• Court: Supreme Court of Missouri
• Decided: October 15, 1885
• Status: Published

Opinion

Sherwood, J.

I. Action for' damages for killing the horse of plaintiff. The suit was brought in the circuit court. The diagram which accompanies this opinion and the evidence in the cause show with sufficient clearness that the statutory duty of the defendant, under the provisions of section 809, had not been performed. The cases cited on behalf of the plaintiff fully support and illustrate this position. Rutledge v. Railroad, 78 Mo. 286 ; Morris v. Railroad, 79 Mo. 370 ; Rozzelle v. Railroad, Ib. 349. If there were any circumstances in this case exempting the defendant from the performance of -the duty which the - statute enjoins the burden of proving this exemption was on the defendant. The fact that the proprietor of the adjoining land had failed to fence up to his line did not absolve the defendant from compliance with its statutory duty to fence its road where it passes through unenclosed lands.

II. As to the constitutional points raised by the ■defendant in the court below, we might well decline their consideration here, for the reason that they are hot even so much as mentioned in the briefs and argument of the defendant. The constitutionality of the double damage statute has heretofore been determined adversely to the claim of defendant. Barnett v. Railroad, 68 Mo. 56. As to the other constitutional points hot passed, upon in that case a majority of the court hold them to have been correctly ruled upon by the trial court. Therefore, judgment affirmed.

All concur.