The question presented for decision in this case is this: In a suit brought under section 2124, Revised Statutes ( section 5 of the old damage act), can the action be defeated on a showing by the railroad company that the train which killed the animal was at the time being run in a careful and prudent manner, and that the injury was not caused by any negligence or want of care and skill on the part of the servant of the company at the time in charge of the train % We think not.
To permit such defense would, it seems to us, be opposed to section 2124 in word and spirit. The section reads, “ When any animal shall be killed or injured by the cars, etc., used on any railroad in this state, the owner of such animal may recover the value thereof in an action against the company without any proof of negligence, unskillfulness, or misconduct ón the part of the officers, servants or agents of such company; but this section shall not apply to any accident occurring on any portion of such road that may be enclosed by a lawful fence or in the crossing of any public highway.” It is admitted that the place where plaintiff’s cow was killed did not come within the places excepted from the operation of this section by the last clause thereof, that she was killed where the track may have been fenced, although not at a place required in terms to be fenced as provided by section 809 (the old forty-third section) of the general railroad law.
We can’t give effect to the provisions of this section 2124, which in effect declares a liability of a railroad company on the concurrence of, first, the killing of the animal, and, second, at a point where the track is not, *682but may be, fenced, and then allow the liability to be defeated because there was no negligence in operating the train, whereas, the section stipulates in effect that such actual negligence in running the train is wholly immaterial. This statute gives the owner of the animal the right of recovery, without any proof of negligence on the part of those operating the train. By the terms of this law the legislature meant to and did, eliminate that issue from such controversies. Can it be said that, although the owner of the animal might prove the killing by the railroad company at a point on its road unfenced, and on which proof the statute fixes a liability without regard to the question of the negligence in running the train, that the defendant may impose such other issue and additional burden on the plaintiff by a showing of due care by its servants in operating the train ? Under this statute the legal presumption of liability is fixed on the railroad company by the proof of killing the animal by the company’s engine and cars at a point in the city of Chillicothe where it might have fenced its track without obstructing streets or disturbing the use of its depot grounds; and this liability is not overcome by any proof of careful management of the train which killed the animal.
We are unaided in the decision of this question by any ruling of other courts on this or a like statute. In none of the cases so numerously cited by counsel on both sides has this point been passed on. Defendant’s learned and industrious counsel, in their brief, quote repeatedly from the supreme court of this state such expressions as, “ That section 2124 simply dispenses with the proof of negligence in the first instance,” etc., 66 Mo. 571, and again of the “ prima-facie case” made by proof of the killing of the animal on the track where not fenced, etc. 90 Mo. 134. But in no case that we have been able to examine was it ever claimed by counsel, or held by the court, that this case made, in the'firsi instance,” this '■‘■prima-facie case,” could be destroyed *683by proof by the defendant that its servants operating the train were at the time in the exercise of due and proper care.
The trial court committed no error in refusing, defendant’s instructions, and as it appears to us the case was tried upon the proper theory and construction of the statute, the judgment must be affirmed. Ellison, J., did not sit in this case.
Smith, P. J., concurs.