Riggs v. St. Francois County Railway Co.

96 S.W. 707, 120 Mo. App. 335, 1906 Mo. App. LEXIS 403

Opinion

NORTONI, J.

(after stating the facts.)

1. The first proposition advanced for reversal of the judgment is that appellant is not a railroad corporation within the contemplation of section 1105, R. S. 1899, and as such, required to fence its right of way for the better security and protection of animals on the highway and at large, through the country traversed by it. The case of Sams v. Railway, 174 Mo. 53, is cited and relied upon to sustain this contention, and it is argued' that the Supreme Court in that case ruled to the effect that the general statutes of the State employing the term “railroad” has application only to commercial railroads and. steam railroads and that street railroads are to be excluded from the provisions of all general statutes employing the term “railroad” only; that to bring a company organized as a street railroad within the. purview of the statutes as in this case, it should, by specific terms, mention street railroads, etc. The majority of the members of this court do not SO' understand that adjudication. We are of the opinion that its true import is well digested and stated in the fifth point of the syllabus, in the following language: “The word ‘railroad’ used in the staute may or may not apply to a street railway, and to determine whether or not it does, the connection in which it is used must be looked to.” And it appears in the opinion that the court had in mind a special statute and was dealing with it “as an act of class legislation,” the “fellow servant law of 1897,” and held that inasmuch as that act neither designated street railroads “by name nor by words necessarily indicating the intention to include them, and as such corporations were neither within the letter nor reason of the law, it does not apply to them.” It seems quite clear that this much and no more was decided in that case. Indeed it is a rule universally approved that the meaning of the word “railroad,” when employed in a legislative enactment, can only be determined by reference to the context of the act and manifest intention of the Legislature. As said by Mr. Wood in his excellent work on the law of railroads, vol. 1, (1894), sec. 1: “Thus it has often been a question whether tbe term would include a street railway. The answer must depend upon tbe character of tbe statute and tbe purpose for which it was provided.” See also 1 Elliott on Railways, secs. 3, 4, 6. Tbe Supreme Court of Pennsylvania laid down a most reasonable and satisfactory rule on tbe subject in Gyger v. Railway, 136 Pa. St. 104, as follows:

“ ‘Railway’ and ‘railroad’ are synonymous and in all ordinary circumstances are to be treated as without distinction, and when either of them is used in a statute and tbe context requires that a particular kind of road is intended, that kind will be held to be tbe subject of tbe statutory provision, but if tbe context contains no such indication and either of tbe words are used in describing tbe subject-matter, tbe statute will be held applicable to every species of road embraced within tbe general sense of tbe word used.”

See also Mass. Loan & Trust Co. v. Hamilton, 88 Fed. 588.

So it appears, after.all, we must look to tbe context of the statute before tbe court and upon taking into account its object and purpose, determine in each case, upon its peculiar facts, tbe meaning of tbe word “railroad” therein employed, when endeavoring to ascertain to what class or character of railroads tbe Legislature intended to apply tbe regulation provided, and in no case can an accurate determination and result be bad except by a constant vigil as to tbe mischief sought to be prevented and tbe remedy sought to be provided by tbe enactment.

2. With these principles before us, let tbe examina tion of the case before the court be had. The railroad in question is several miles in length, the greater portion of which passes through an agricultural country in St. Francois county. It is chartered for the purpose, and the second franchise granted to it, under section 1187, R. S. 1899, is, “to operate its road by animal, cable, electric or other motive power as the consent to the use of which said power may be obtained from the public authority of such city, town or county.” A portion of the road passes through the city of Farmington, a place of about five thousand inhabitants, and makes stops at each and every street crossing when necessary for the accommodation of passengers. Aside from this, it is rural or interurban, rather than urban, and by its charter it is authorized to “receive and collect such fares for the transportation of persons, express and mails as may be provided in the said consent of such public authorities of such city, town or county, given as aforesaid.” (Sec. 1187, R. S. 1899.) The motive power selected by it, and presumably authorized by St. Francois county and the city, under the second franchise quoted supra, is electrical rather than animal or cable and falls under the designation of other motive power contemplated by such franchise; its cars are propelled by electricity at a more or less rapid rate of speed, as is usual with such roads, and therefore when in operation, it is a dangerous agency with respect to the rights of those persons who are passengers or employees thereon as well as with respect to the rights of the citizens and other persons along its route to 'permit their animals to run at large or to pass to and fro upon the highway. Indeed, it may not be so highly dangerous as a stream railroad in operation, inasmuch as the cars are not so heavy nor the motive power and speed so great, generally speaking, and therefore casualties may be more readily averted. Nevertheless the fact remains that it is a dangerous agency, being' operated by means of a motive power of great force, under a charter from the State, in a thickly populated community, which, if permitted to continue with its tracks unfenced, is designed to inflict injury to its patrons and employees aboard the cars on account of the probability of derailment by means of collisions with animals on the track, and designed also' to inflict injury to the property rights of citizens by killing or maiming such animals as wander upon its tracks by reason of its failure to fence the same. Now these are the very rights sought to be protected and rendered more secure by the provisions of the statute under consideration, therefore the railroad in question falls within both the spirit and reason of the statute. But it is suggested, even though it comes within the spirit and reason thereof, it does not fall within the letter of the statute, inasmuch as the words “street railroad” are not therein employed. Now, it may be answered to this suggestion that the words “steam railroad” or “commercial railroad” are not employed in the statute and, except for the fact that the statute is found in the article pertaining to railroads, the argument that steam railroads are not within its letter can be predicated with as much force on this truth as can the argument that electric roads, organized under the street railroad law, operating outside of cities and towns and passing through an agricultural country for many miles, are not within its letter. We are not persuaded by this argument in the least. The suggestion throws no light on the subject, for the word employed in the statute is “railroad,” which properly applies to either steam or street railroads, and we therefore ascertain that the defendant, although organized as a street railroad company, is operating a railroad in this State, and it therefore falls within the letter of the statute as well. The statute does not mention steam railroads nor limit its application thereto, but, on the contrary, it purports in express terms, to apply to “every railroad.” The first three words of the section are: “Every railroad corporation.” So much as is pertinent here reads as follows: “Every railroad corporation formed or to he formed in this State, and every corporation to be 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 its road,” etc., etc. (Sec. 1105, R. S. 1899.) It will be observed that the statute not only applies to every corporation then in existence and to every railroad “to be formed under this article,” but it applies' as well to every railroad “to he formed in this State ” and continues, and applies “to any railroad corporation running or operating any railroad in this State.” These latter words are broad and comprehensive and include all railroads, whether incorporated in this State or not. Its terms are. as comprehensive as the subject itself and includes within its scope the entire import and meaning of the word “railroad.” It is true the defendant was not organized “under this article,” the statute quoted being a portion of article 2, chapter 12, R. S. 1899, pertaining to railroads, and the defendant having been organized under article 3 of the same chapter, which latter article pertains to street railroads. Now both article 2, pertaining to railroads, and article 3, pertaining to street railroads, are parcel of the same chapter and must be read together. By reference to article 2, in which is found section 1105 under consideration, pertaining to railroads, it is manifest that the article does not contemplate steam railroads exclusively, for in section 1035, parcel thereof, granting powers to the railroad companies organized thereunder, we ascertain that the sixth franchise or power granted to such railroads, is “to take and convey passengers and property on their railroad by the power and force of steam or of animal or by any mechanical power, and to receive •compensation.” This clause of the statute evinces that the Legislature, in enacting the general law for the in corporation of railroad companies in 1855, looked forward to the utilization of other forces of nature than steam as a motive power to be employed by these agencies for transportation, and therefore contemplated and intended, in providing for the organization of railroad companies, to provide for the incorporation of those which might be operated by electricity or other power as well as by steam. They are, in unequivocal language, authorized to employ steam or animals or “any mechanical power.” Of course a railroad operated by electricity would fall within the clause last mentioned, and this defendant is therefore such a railroad as is recognized by article 2 of chapter 12, notwithstanding a special article was added, dealing with street railroads. Article 3, dealing with street railroads was added because it was necessary to make the provisions enabling them to obtain a right of way over streets and other matters incident to municipal interests. As said before, both articles are of the same chapter, dealing with the subject of railroads, and should be read together. Article 3 purports to apply to street railroads, and therefore should be considered special with respect thereto, whereas article 2 purports to deal with railroads, and is not expressly limited .to any particular class of railroads, and the provisions of its various sections should not be confined to steam or commercial railroads exclusively unless the statute manifests that such railroads are intended; while on the other hand, if the text of the statute employing the word “railroad” indicates, when considering the mischief sought to be prevented and the remedy therefor, that other railroads were intended as well, then such interpretation must be given as will develop and carry into effect this legislative iiitention, and likewise certain that the character of the motive power employed, whether steam or electricity or other mechanical power, can render the ultimate fact of a highly dangerous agency none the less. It is certain that the funda mental distinction with respect to street railroads and steam or commercial railroads lies in the character of the nse of the railroads, and not in the character of the motive power employed by them. [Mass. Loan & Trust Co., v. Hamilton, 88 Fed. 588; Hannah v. Street Railway, 81 Mo. App. 78; 27 Amer. & Eng. Ency. Law (2 Ed.), 51; 1 Elliott on Railroads, sec. 6.]

It is true that in the case last cited, which was one involving the killing of stock under this same statute, the railroad company, although operating a rural or interurban, not an urban railroad, by means of electricity, was organized as a railroad company under the general statutes in that behalf, and not as a street railroad company, and while the court made it clear, and in fact, decided that the motive power employed should not influence the consideration of the question in the least, it rests its judgment of liability against the company, principally upon the two facts that the defendant was incorporated as a railroad and was operating a railroad within the meaning of section 1105, supra. In this latter respect the case is an authority here. It is manifest and the thought runs through the entire opinion, that the court was of the opinion that the defendant would have been liable just the same in that case, whatever statute it was incorporated under, inasmuch as it was operating a railroad and came within the spirit and reason of the statute as well.

In Koken Iron Works v. Robertson Avenue Street Ry. Co., 141 Mo. 228, 44 S. W. 269, it was urged that street railroads were not within the intent of the statutes of 1889, sec. 6741 (now section 4239, R. S. 1899), giving a lien upon the “roadbed, station houses, depots, bridges, rolling-stock, real estate and improvements,” of “any railroad company” for which work or labor is done as aforesaid, by said section. The Supreme Court answered the argument by saying) in effect, that much of the statute appeared to be directed against the rail roads operated by steam and the steam roads were generally designed by the act, and then said: “But the general terms of the law are also susceptible of application to street railroads, and we find nothing in any part of the enactment to indicate that such obligation is not intended. ( When we . . . consider the broad objects sought by such legislation, it seems clear that street railroads were not intended to be exempt from liability to respond to such lien claims in a proper case.” This seems to be the view of this court oh the same question, as appears in St. Louis Bolt & Iron Co. v. Donahoe, 3 Mo. App. 559.

Now in the case of Jerman v. Benton, 79 Mo. 148, it was contended that the stockholders in a street railway company were subject to the double liability imposed on stockholders in all other corporations except ordinary railroads. The argument was that a street railway company was not a railway within the meaning of the fifty-seventh section of chapter thirty-nine of the statutes of 1855, authorizing the formation of railway associations. This section was so worded as to exclude stockholders in ordinary railroad companies from the ■ double liability imposed on stockholders in other corporations. A stockholder of the Beliefontaine Street Railway Company insisted that it was a railroad company within the meaning of chapter thirty-nine of the statutes of 1855 (which corresponds to article 2, chapter 12 of the present statutes) and that hence he enjoyed immunity from double liability as a stockholder. On the contrary it was insisted that a street railway company was not a railroad within the meaning of the original railroad law (article 2 of chapter 12, of the present statutes). This court adoptéd the other view, holding that a street railroad company was within the scope and purpose of the general railroad statutes and its stockholders not subject to double liability. This holding was approved by the Supreme Court. After saying that the point for consideration conld not be satisfactorily disposed of by considering the various methods of locomotion employed by railroad companies, the opinion of the Supreme Court proceeded to point out that according to even this narrow test, a street railroad company was within the meaning of( the general railroad act, resting its argument on the clause we have quoted, which provides for the use not only of steam and animals, but of any kind of power to transport, persons and property. The Bellefontaine Street Railway Company was one which was to operate only by horse-power within the limits of St. Louis. Part of its line was outside of the City and could have been operated by other means. The Supreme Court held that even within the city it was a railroad within the meaning of the general laws. The opinion says: “Horse or street railroads, as far as they are employed in cities, serve the same uses and purposes for which railroads are used between distant points in the country; they possess the same essential features as servants of the public, the principal difference being tested by the peculiar character of the-territory they are operated in and the safety, comfort and wants of the people in that territory.” That decision would seem to be decisive of the present case. There is much more reason for holding an electric railroad running across the country between distant towns is a railroad within the meaning of that section of article 2 which imposes double damages where the line was unfenced, than there is for holding that a horse railroad company, operating entirely within the limits of St. Louis, was a railroad company within the meaning of the section of the article which was construed to exempt stockholders in railroad companies from double liability. The fact that the present defendant happened to incorporate under article 3 of chapter 12 relating to the organization of street railway companies, has nothing to do with the decision of the question at issue. Defendant is in no real sense a street railway. It does not run over streets. It is a railroad over the country, operated by a mechanical power. For aught we know, it may have stations, though that is an unimportant point. Of course there are many provisions in article 2 inapplicable to electric roads; for instance, to provide cabooses, double-deck cars, blow steam whistles at crossings, etc., etc. Because it cannot and is not required to do these things, it by no means follows that it need not do other things which are applicable to it. Now the purpose of this statute is manifest. • It is a proper regulation imposed by the State in virtue of its police authority to prevent the operation of such dangerous agencies as it has chartered to maintain and operate railroads from inflicting unnecessary injury to its patrons and employees aboard its cars which are likely of derailment from animals coming upon its tracks (3 Elliott on Railroads, sec. 1182), and further, to prevent the killing and maiming of such animals owned by persons in the community or elsewhere. It is a wholesome law, designed primarily to furnish a reasonable degree of protection at least against the probabilities of injury, as indicated, and it is a fact understood by all that the result is the same to either passenger or employee who is injured by the derailment of the car, as indicated, as is the loss the same to the person whose animal is either killed or maimed thereby, whether the car is propelled by steam, electricity or other motive power. And as to the proposition that the railroad fencing statutes do not apply to rural or interurban railroads organized under the street railroad statutes, we must admit our inability to appreciate the distinction, when viewed from a practical standpoint, with the manifest purpose and intention of the fencing statutes before us. Either railroad, operated as it is through an agricultural country, possesses an element of great danger to the passenger, employees and the animals along the route, and to the farmer whose cow is killed or injured by reason of the neglect of the corporation to fence, it is wholly immaterial whether it was chartered as a street railroad or steam railroad, just as it is immaterial whether it be propelled by steam or electricity; and indeed, it is a refined distinction to hold that the farmer must be required to read the charter of the railroad company to ascertain whether it is liable for the value of his cow killed by it, when the cow was killed on a railroad track by a railroad car because the railroad had failed to fence, and under such circumstances as to affix liability therefor against the railroad company under the general statutes requiring railroads to fence.

It is suggested that the statute is penal in its nature and therefore cannot be extended beyond its clear import. This is true, and the court must abide by the rule suggested. We are not extending the statute, however. We are only giving life and vigor to its plain letter and manifest spirit. Now the rule of strict construction, pertaining to penal laws, like all other rules of construction, must surrender to the first and cardinal principle of all construction, which is, that the intention of the law-makers, when ascertained, must be carried into effect by the court if not prohibited by constitutional limitations. We find, as pointed out above, that the railroad in question is within both the letter and spirit of the statute, and therefore it is manifest that the Legislature intended that railroads of this class, when engaged in operating their cars through the country between towns, should fence their tracks as other railroads are required to do under like circumstances. The reasons demanding fences are the same in either case.

There is a provision in the statute under consideration as follows:

“If any corporation aforesaid shall, after three months, from the time of the completion of its road through or along the lands, fields or inclosures hereinbe fore named, fail, neglect or refuse to erect or maintain in good condition any fence, opening or farm crossings or cattle-guards as herein required, then the owners or proprietors of said lands, fields, or inclosures may erect or repair such fences, openings, gates or farm crossings or cattle-guards, and shall thereupon have a right to sue and recover from such corporation in any court of competent jurisdiction the cost of such fences, openings, gates, cattle-guards or repairs, together with a reasonable compensation for his time, trouble and labor in and about the construction of such fences, openings, gates or cattle-guards, or the making of such repairs, together with ten per cent interest per annum thereon, from the time of the service of- process upon such corporation in such suit: Provided, that before such repairs are commenced, such owner shall give five days (5) notice in writing to the railroad company, by delivering a copy thereof to the nearest section foreman or station agent of such railroad company, that the railroad fence needs repairs at a place or point named in the notice on the lands of such owner.” [See 1105, R. S. 1899.]

It is suggested that this provision relating to five days’ notice to the section foreman or depot agent prior to the fences being erected by the owners or adjoining proprietors evinces that the Legislature had in mind only steam or commercial railroads inasmuch as those roads are known to usually employ depot agents and section foremen and maintain depots, whereas such is not the usual practice of electric railroads organized under the statutes pertaining to street railroads. Whatever may be the practice of electric railroads in this behalf, we must read the statute in connection with the other legislation on the subject and we find in section 1187, R. S. 1899, being parcel of article 3, pertaining to street railroads, that the fifth franchise granted to street railways is: “To purchase and acquire depots^ power houses, sites and terminals.” From this, it is manifest that the Legislature contemplated that even street railroads should, if they saw fit, maintain depots and no doubt depot agents in connection therewith, and especially so if they operate long lines across the country. It is a well known fact that they do employ a large number of men, commonly known as section men, in keeping the roadbed in repair, and these men are in charge of a foreman, the same as a section foreman of other railroads. And it appears that the provisions of the statute above quoted are therefore not inconsistent with the views expressed by the court herein. It is no doubt true that the Legislature did have in mind steam railroads, such as are known to maintain depots, depot agents and section foreman, but this in no wise excludes the notion that it did not intend as well to apply the statute to electric or street railroads, when they embark in the business of running over the country, outside of cities and towns. By its plain words, it says it applies to “any railroad corporation running, or operating any railroad in this State,” and to every railroad “to be hereafter organized,” and the fact that street railroads do have section men in their employ, together with the franchise and its provision authorizing them to erect and maintain depots, seems amply sufficient to bring it within the contemplation of the statute quoted. Be this as it may, however, we are of the opinion that the mere fact that this provision evinces the purpose of the Legislature to level the statute against such roads as were known to maintain station agents and section foreman, about which there can be no controversy, does not exclude the idea that the Legislature purposed as well to level its provisions against all such railroads as traverse the agricultural portions of the State, where cattle are likely to go upon its track and occasion the twofold calamity of derailing the car to the injury or death of passengers and employees, or the killing and maiming of the animals with which the collision is had, even though such roads do not maintain depots, depot agents and section foremen. In view of the very comprehensive language used by the Legislature and the reason and spirit of the law as well, we are not inclined to hold that the law-making power intended anything less in this respect than what is said, if the words “any railroad corporation running or operating any railroad in this State,” and every railroad “to be hereafter organized,” as expressive of the comprehensive purpose of the law-makers in respect to the principal object of the law itself, are to be limited in their application so as to exclude certain railroads from the provision of the words “any railroad,” by the influence and context of the subsequent provisions relating to such a mere incident to the general purpose of the act, as is the incident pertaining to how a recovery may be had for erecting fences in event the railroad fails for three months to do so and they are constructed by the adjoining proprietors, then it should be done by the court of last resort, the judgment of which would no doubt have such influence on the subject as to bring it immediately before the Legislature and occasion an amendment to the section, if in the wisdom of the legislative authority, an amendment would be proper. The fact is, the rural or interurban railroad organized as a street railroad is now a factor with which the courts are compelled to deal, and the earlier their status is ascertained and settled by the courts, the better for the peace and repose of society.

Entertaining this view, we are of opinion that the defendant is liable in this case unless the next question to be considered relieves it therefrom.

3. It is urged that the railroad, being located in the public road by permission of the county court, it could not be required to fence such road as it would obstruct the highway. In the first place, it must be borne in mind that this statute requiring the railroads to fence their tracks, is not exclusively for the owner of the animal nor for the benefit of the adjacent proprietors but is in the nature of a police regulation designed to promote the security of persons and property generally. [Robinson v. C. & A. Railway, 57 Mo. 494; Jackson v. Railway, 43 Mo. App. 324.] The fact that the railroad ran along the north edge of the public road does not operate to relieve the railroad company from its duty to maintain fences for the purpose as above indicated, for it has long since been settled beyond controversy that the statute requires fences to be erected everywhere outside of towns and cities except at the crossings of public and private roads and necessary station grounds. [Morris v. Railway Co., 79 Mo. 367; see also Accord v. Railway Co., 113 Mo. App. 84, 87 S. W. 537.] And it has been frequently decided that when a railroad runs along and abutting a public road, this in no sense relieves the obligation to fence. [Rozzelle v. Railway, 79 Mo. 349; Morris v. Railway, 79 Mo. 371.] And this is true, even though the defendant’s railroad encroaches upon a'public road, as was decided in Emerson v. Railway Co., 35 Mo. App. 621. For, as well said in that case, and by the Supreme Court in Robinson v. C. & A. Ry. Co. 57 Mo. 494, a railroad running along a highway is required to be fenced with especial care and watchfulness because of the increased dangers to the public and its property. [Citing 1 Redfield on Railways (5 Ed.), 517.]

It is unnecessary to multiply words on this question. The mere fact that the railroad was constructed bn the right of way of the public road by permission of the county court cannot relieve it of its statutory duty to fence. On the contrary, its location there could only enhance such duty, if there be such a thing as rendering a duty more mandatory in one instance than another, for on a public thoroughfare there is greater likelihood of inflicting injuries than otherwise. And as a correlative, special care should be exercised to prevent such injuries. The county court could grant no authority to the company to operate its road in a manner violative of this positive statute which would operate to relieve it from the duties thereby imposed and its duty to maintain fences remains the same wherever it is located, outside of towns and cities and if such a fence in the highway constitutes a public nuisance, or if the railroad itself constitutes a public nuisance^ it is immaterial so far as this case is concerned. Those questions are not before the court in this case.

The judgment of the learned circuit judge was correct and will be affirmed. It is so ordered.

Goode, J., concurs: Bland, P. J., dissents.