Hannah v. Metropolitan Street Railway Co.

81 Mo. App. 78, 1899 Mo. App. LEXIS 365

• Court: Missouri Court of Appeals
• Decided: May 29, 1899
• Status: Published

Opinion

GILL, J.

The defendant operates an electric railway line between Kansas Oity and Independence, and the question is, whether or not it is answerable in double damages for stock escaping onto the track and killed where the right of way is unfenced. It is conceded that plaintiff’s mare strayed upon the tracks of the road at a point about -half way between Kansas City and Independence, and was there run over and killed by one of defendant’s electric cars. It is also admitted that the place where the mare got upon the track was such that it ought to have been fenced, if section 2611 of our corporation statute applies. On a trial by the circuit court, without a jury, the defendant was held liable for double the value of the animal killed and an appeal was taken to this court.

The statute in question provides, that “every railroad corporation formed or to be formed in this state, and every corporation formed under this article, or any railroad corporation running or operating any railroad in this state, shall erect and maintain lawful fences on the sides of the road where the same passes through, along or adjoining inclosed or cultivated fields or uninclosed lands,” etc., and then provides that for a failure to so fence, the corporation shall be liable for double the amount of damages resulting from such failure. The point for decision here is, whether or not, under the circumstances, the defendant is amendable to the provisions of this statute.

railways: definírailway. We have been furnished by defendant’s counsel with an elaborate brief and argument contending that the Metropolitan Street Eailway Company is not bound to fence its right of way, because it is not a railroad corporation, within the meaning of said section 2611; that it is a street railroad company as distinguished from an or-_ dinary railroad, winch, and only which, was m-tended by that act. We are.not disposed to take issue with counsel as to the mere definition of terms. It may be conceded that the defendant is ordinarily engaged in the construction and operation of street railways, that such street railroads are not required to be fenced; in other words, that the statute above quoted has no' application to street railways, and yet the defendant may be held liable under the peculiar facts of this case. For it seems to us that the ten miles of road operated by defendant between these two cities can hardly be classed as a street railroad, but comes under the designation of railroad mentioned in section 2611, and which is required to be fenced. A street railway has been variously defined. As the name indicates, the primary meaning of street railway, or street railroad, is one constructed and operated on and along the streets of a city or town for the carriage of persons from one point to another in such city or town or to and from its suburbs. It is peculiarly an institution for the accommodation of people in cities or towns; its tracks are ordinarily laid to conform to street grades; its cars run at short intervals, stopping at street crossings to take on and discharge passengers, and in its business is confined to the carriage of passengers and not freight. Booth on St. Rys., sec. 1; Elliott on Roads & Streets, p. 557; Williams v. Railway, 11 Fed. Rep. 556; Funk v. Railway, 61 Minn. 135.

The road in question is quite a different thing from that just described. It is not strictly local in its character; it is not used to carry passengers from corner to corner, or from one section or portion of a city to another, or to transport persons from “down town” to and from the suburbs; it pays little attention to streets and roads but takes its course through the country just as any other railroad. It is a means of transporting persons from one city to another — its western terminus being at or near the eastern limits of Kansas Oity, and its eastern terminus the public square at Independence. It is rural rather than urban. It receives and discharges passengers at regular stations or depots much after the fashion of ordinary railroads passing through the country. The evidence, it is true, shows that as operated when plaintiff’s mare was killed, this road did not carry freight but only passengers, but, as we shall presently see, it has authority to transport property as well as people.

rah-roads: street chíse: iéncíng. The road in question is the successor (by purchase under foreclosure of a mortgage) of the Kansas City, Independence & Park Eailway Company, which was organized and incorporated under the general railroad laws of the state for the purpose of constructing, maintaining and operating a railroad between the city of Independence and Kansas City, and for the carriage of both persons and property. Said Kansas City, Independence & Park Eailway Company did acquire the right of way, and did .construct and operate thereon a narrow gauge railroad through the country and farm lands from Independence to Kansas City. The defendant’s predecessor was then, clearly, a railroad corporation as provided for, regulated and named in our statute governing railroads, and it constructed, maintained and operated a railroad within the meaning of that statute. It must be conceded also, that said Kansas City, Independence & Park Eailway was subject to and amendable to the provisions of article 2, chapter 42, under which it was organized and its franchises secured, and was bound to fence its right of way where it passed through the rural district between the two cities.

Under the deed executed by the special master in the foreclosure suit, there was conveyed to the defendant, “the railroad, premises, property and franchises” of the said Kansas City & Independence Company. The defendant then became subrogated to all the rights of its vendor, and along with the “railroad, premises, property and franchises” thus acquired, said Metropolitan Company assumed the obligations pertaining thereto, among which was to maintain and operate said railroad and to observe also tbe statutory regulations required for tbe protection of stock along tbe road and guard tbe safety of tbe traveling public, that is, maintain fences ■along its right of way to tbe like extent as required of its predecessor. As to said road then, maintained and operated between Kansas City and Independence, tbe defendant became a, “railroad corporation running or operating a railroad in this state,” and was legally bound under section 2611 to “erect and maintain lawful fences on tbe sides of tbe road where tbe same passes through, along or adjoining inclosed or cultivated fields or uninclosed lands.”

That defendant has changed tbe motive power from steam to electricity can make no difference; it still remains a railroad within tbe meaning of tbe act. Booth on St. Kys., sec. 1, and notes. Tbe, law was intended as a protection to stock and to human life. Tbe change from steam power to electricity -may lessen tbe chances for accident, but, as tbe present case'shows, has not rendered tbe operation of tbe road entirely safe. Tbe danger still remains, though possibly in a less degree.

We approve tbe action of tbe lower court and its judgment will be affirmed.