State ex rel. Clinton County v. Chicago, Rock Island & Pacific Railway Co.

19 Mo. App. 104, 1885 Mo. App. LEXIS 185

• Court: Missouri Court of Appeals
• Decided: October 26, 1885
• Status: Published

Opinion

Ellison, J.

The proof in thifj case, fails to show the crossing at which the failure to ring the bell or sound the whistle occurred, “was a traveled public road.” The statute is penal, and “it should be strictly construed, and so as not to enlarge the liability it imposes, nor allow a recovery, unless the party seeking it, brings his case strictly within the terms or conditions authorizing it.” Parish v. Ry. Co., 63 Mo. 284.

Evidence of a “road crossing east of the depot,” as spoken of by one witness, and of “a crossing near the east end of the depot platform,” as stated by the other witnesses, might be admitted to be true, and yet such crossing might not be “a traveled public road,” as it is designated in the statute. In this connection, I think, the cases of Hodges v. Ry. Co. (71 Mo. 50), and of Bauer v. Ry. Co. (69 Mo. 219), in point. The term “road crossing,” as used by the witnesses, might well “be applied to the crossing of a. road, not public within the statutory definition.”

When a penal statute is sought to be enforced, a case must be made out within its terms.

The objection that the complaint is not sufficient, I do not deem good, as it covers the demands of pleading in a case of this character with sufficient certainty and accuracy. Nor do I perceive how the alleged malice of the informant can affect the right to enforce the statute. The question is as to the guilt of the defendant, and not the motive of the prosecuting witness, except as it may affect his credibility.

The judgment is reversed and the cause remanded.

All concur.