Berkshire v. Missouri Pac. R. Co.

• Decision Date: 10 December 1887
• Parties: WILLIAM M. BERKSHIRE, Respondent, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
• Court: Kansas Court of Appeals

28 Mo.App. 225

WILLIAM M. BERKSHIRE, Respondent, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.

Court of Appeals of Missouri, Kansas City.

December 10, 1887

APPEAL from Cass Circuit Court, HON. CHARLES W. SLOAN, Judge.

Affirmed.

The case is stated in the opinion.

ADAMS & BOWLES, for the appellant.

I. The court erred in refusing to give the defendant's declaration of law, at the close of the whole case, to the effect that, under the evidence, the plaintiff was not entitled to recover. Railroad v. Lea, 20 Kas. 353; Railroad v. Landis, 24 Kas. 406; Railroad v. Dyche, 28 Kas. 200; Railroad v. Mossman, 30 Kas. 336; Railroad v. Riggs, 31 Kas. 622; Boyle v. Railroad, 21 Mo.App. 419.

II. The plaintiff, having voluntarily permitted his stock to run at large, in violation of the statute making it unlawful for domestic animals to run at large outside the enclosure of the owner (2 Rev. Stat., ch. 109), cannot now complain of defendant for an injury brought about by his own unlawful act. Bowman v. Railroad, 85 Mo. 533.

III. In permitting his stock to run at large, with his knowledge and consent, the plaintiff was guilty of such contributory negligence as will preclude his recovery. Bowman v Railroad, 85 Mo. 539; Stanley v. Railroad, 84 Mo. 631. In this latter case our Supreme Court held to the doctrine of contributory negligence, as stated in the Kansas cases, supra.

IV. The court erred in refusing the defendant's second instruction. It states the law as declared by our own court in the cases cited supra. There is a distinction to be drawn between the act of 1883 (which is now in force), and the law in respect to domestic animals running at large, in force at the time the injury, in the case at bar, happened. Rev. Stat. ch. 109. In the fifth section of the act of 1883 it is declared that " nothing herein contained shall be construed to lessen or interfere with the obligations of the several railroads in this state to fence the right-of-way of such railroads, as is now provided by law." This, it seems to us, clearly indicates a change in the law, else why should it be put there? We do not contend that the law is that if the plaintiff had been an adjoining proprietor he could not recover in a case where his stock escaped on to the railroad track from his own premises by reason of the want of a fence. There could be nothing unlawful in keeping his animals on his own premises, which he would have a right, and which it would be his duty to do, although they might be technically trespassing upon the railroad premises. But when the owner allows his stock to run at large, in violation of law, with his knowledge and consent; and the railroad company also fails to fence, as required by the statute, both are equally guilty of a violation of the law. In such a case the owner of the stock cannot recover for an injury which was brought about as much by his own wrong as that of the railroad company. Boyle v. Railroad, supra.

GEO. BIRD and RAILEY & BURNEY, for the respondent.

I. Plaintiff is entitled to recover under section 809, Revised Statutes, regardless of the stock law of 1879. Krebs v. Railroad, 21 N.W. 131; Lee v. Railroad, 23 N.W. 299; Sims v. Railroad, 24 N.W. 388; Atchison v. Railroad, 6 P. 908; Spencer v. Railroad, 25 Iowa 139; Bowman v. Railroad, 85 Mo. 533; Stanley v. Railroad, 84 Mo. 625; Morrow v. Railroad, 17 Mo.App. 103; Boyle v. Railroad, 21 Mo.App. 416; Alabama v. Railroad, 71 Ala. 545; Fritz v. Railroad, 34 Iowa 337.

II. It can make no difference whether the negligence of the injured party contributed to the injury or not. The enforcement of the law requiring railway companies to fence their roads concerns the public, and the violation of one statute by the complainant is subordinate to the greater good to result to the public by enforcing the penalty. Railroad v. Methoven, 21 Ohio St. 593; Price v. Railroad, 49 Mo. 440; Barnett v. Railroad, 68 Mo. 62; Boyle v. Railroad, 21 Mo.App. 422.

III. Prior to the law of 1879 it was settled by repeated decisions in this state that it was not contributory negligence for the citizen to turn his stock upon the commons in the vicinity of a road, although he knew at the time that the road was not fenced at that point. Gorman v. Railroad, 26 Mo. 441; Turner v. Railroad, 78 Mo. 578; Davis v. Railroad, 19 Mo.App. 425; Boyle v. Railroad, 21 Mo.App. 421.

IV. When the negligence of plaintiff is a remote condition of the accident, and does not directly contribute to the injury, this will not relieve defendant of the consequences of negligence on its part, which is the efficient cause of the injury. Meyer v. Railroad, 59 Mo. 223; Miller v. Railroad, 5 Mo.App. 471.

HALL J.

This was an action for double damage on account of the killing of plaintiff's hogs. The case was tried upon an agreed statement of facts, from which it appears that the defendant, by one of its engines, on the twelfth day of August, 1873, ran over and killed the plaintiff's hogs; that the hogs went upon the railroad and were killed in Cass county, at a point where the railroad was not fenced, as required by the statute; that, at said date, the law restraining swine from running at large, being chapter 159, Revised Statutes, was in force; and that, at said time, the hogs were, with the knowledge and consent of plaintiff, running at large in violation of said law. We are asked to pass upon the question, decided against the defendant by the circuit court, whether the plaintiff, whose hogs were, with his knowledge and consent, running at large in violation of the said act of 1879, can recover damages on account of the defendant's killing them, on the sole ground of the want of the fence required by statute.

It is stated, in the agreed statement of facts, that the act of 1879 was in force in Cass county at the time mentioned, viz August 12, 1883. This statement is not the statement of a mere fact, but is also, in a certain sense, the...