# Missouri Pacific Railway Company v. Humes

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United States Supreme Court
115 U.S. 512
Missouri Pacific Railway Company v. Humes
Argued: November 23, 1885. ---
This case comes from the supreme court of Missouri. It is an action against the Missouri Pacific Railway Company, a corporation created under the laws of that state, to recover in double its value damages for killing a mule, the property of the plaintiff below, of the value of $135. It was brought in the circuit court of St. Louis under a statute of the state which provides that 'every railroad corporation formed or to be formed in this state, and every corporation formed or to be formed under this chapter, 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, with openings and gates therein, to be hung, and have latches or hooks, so that they may be easily opened and shut at all necessary farm crossings of the road for the use of the proprietors or owners of the lands adjoining such railroad, and also to construct and maintain cattle-guards, where fences are required, sufficient to prevent horses, cattle, mules, and all other animals from getting on the railroad; and until fences, openings, gates, and farm crossings and cattle-guards, as aforesaid, shall be made and maintained, such corporation shall be liable in double the amount of all damages which shall be done by its agents, engines, or cars to horses, cattle, mules, or other animals on said road, or by reason of any horses, cattle, mules, or other animals escaping from, or coming upon, said lands, fields, or inclosures, occasioned, in either case, by the failure to construct or maintain such fences or cattle-guards. After such fences, gates, farm crossings, and cattle-guards shall be duly made and maintained, said corporation shall not be liable for any such damages, unless negligently or willfully done.' Sess. Laws 1875, p. 131.
The petition avers the incorporation of the defendant below, the plaintiff in error here; its ownership of a railroad running into and through the city of St. Louis; the ownership of the mule by the plaintiff below on the first of August, 1877, and its value; the failure of the company to construct and maintain the fences, gates, and cattle-guards required by the above statute, at the point on the line of the road in the city where it passes through, along, and adjoining cultivated fields, and that the mule was on that day run over and killed by the agents, engines, and cars of the company on the road; that the killing was occasioned by the failure of the company to construct and maintain such fences, cattle-guards, and gates; and that the plaintiff was damaged thereby in the sum of $135. He therefore prays judgment for $270 and costs. The defendant answered the petition, denying generally all its material allegations, and averring, as a further defense, that such injuries or damages as were sustained by the plaintiff were caused by his own careless, negligent, and unlawful acts directly contributing thereto. The plaintiff, in reply, traversed the averments of this second defense. The action was tried by the court without a jury by stipulation of the parties. The allegations of the petition were established, and the court found the issues in favor of the plaintiff, and assessed his damages at $135. Thereupon, on his motion, the damages were doubled, and judgment was rendered in his favor for $270 and costs.
On the trial, objections were taken by the defendant to the admission of evidence on the part of the plaintiff, and also, in various stages of its progress, to the prosecution of the action, and to the entry of judgment against the company, on the ground that the statute upon which the action is brought is in violation of and in conflict with-(1) Section 1 of article 14 of the constitution of the United States, in that it is depriving the defendant of its property, so far as it exceeds the value of the stock killed or injured, without due process of law, and in that it denies to the defendant the equal protection of the laws. (2) Section 20 of article 2 of the constitution of the state of Missouri, in that it is taking the private property of the defendant against its consent for the private use and benefit of the plaintiff, so far as the amount claimed by plaintiff exceeds the value of the stock killed or injured, and is so far taking and appropriating, without due process of law, the property of the defendant to the use of the plaintiff, which use is private within the meaning of said provision. (3) Section 30 of article 2 of the constitution of the state of Missouri, in that, so far as plaintiff seeks to recover in excess of the value of the stock killed or injured, it is depriving the defendant of its property without due process of law, and against the law of the land. (4) Section 53 of article 4 of the constitution of the state of Missouri, in that it is granting to a class of persons, of which plaintiff is one, a special and exclusive right, privilege, and immunity. (5) Section 7 of article 11 of the constitution of the state of Missouri, in that it is giving the clear proceeds of the penalty, to-wit, the amount over and above the value of the stock killed or injured, to the plaintiff, and not to the school fund, as provided by said section, and that the legislature has provided no remedy, or party plaintiff, for the recovery of such penalty for said school fund.
But the court overruled the objections in each instance, as they were made, and the defendant below excepted to the rulings. A motion for a new trial, and also in arrest of judgment, was made on similar grounds, and was disposed of in the same way, against the exception of the defendant. The case being taken to the court of appeals of St. Louis, the judgment was there affirmed pro forma without prejudice to either party in the appellate court, both parties waiving any error in such affirmance. The case was then carried to the supreme court of the state, where the judgment of the lower court was affirmed, after full consideration and argument; and thereupon this writ of error was brought.
A. T. Britton, A. B. Browne, and Thos. J. Portis, for plaintiff in error.
[Argument of Counsel from pages 516-518 intentionally omitted]
T. K. Skinker, for defendant in error.
FIELD, J.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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