Brassfield v. Patton

• Decision Date: 10 December 1888
• Parties: REUBEN BRASSFIELD, Respondent, v. JOHN PATTON et al., Appellants.
• Court: Kansas Court of Appeals

32 Mo.App. 572

REUBEN BRASSFIELD, Respondent, v. JOHN PATTON et al., Appellants.

Court of Appeals of Missouri, Kansas City.

December 10, 1888

Appeal from Grundy Circuit Court. --HON. G. D. BURGESS, Judge.

REVERSED.

The case is stated in the opinion.

John P. Butler, for the appellants.

(1) While the railroad company was authorized to construct its railroad over and across the public road in question so as not to obstruct the same, yet it was not, and is not authorized to obstruct it by building fences along the right of way of the company, across such public road. From the plaintiff's complaint, it is inferred that he grounds his right of recovery in this action upon the failure of the railroad company to build lawful fences across the public road. Or, that he has a right of recovery, because the railroad was not fenced with a lawful fence at points along the line, other than that where the injury occurred. Or argumentatively, that Charles Bailey's private fence was built so close to the railroad that there was no room for the colt to turn around, and hence, notwithstanding it was killed on the public road, the company is liable in this action for double damages. Such, however, is not the law, and this complaint is not only insufficient to authorize a recovery but on the contrary shows, if it shows anything, that he has no right to recover. There is no allegation in this complaint that the colt in question got upon the railroad at a point where the company was by law required to fence. It is therefore fatally defective, and the defendant's first instruction should have been given, and his motion in arrest of judgment sustained. Nantz v. Railroad, 79 Mo 196; Asher v. Railroad, 79 Mo. 432; Manz v. Railroad, 87 Mo. 278; 2 Rorer on Railroads, 1409. (2) On the trial of this case in the circuit court the evidence of the plaintiff and his witnesses showed that the road in question was regularly laid out and established sixty feet in width; that it was fenced on both sides by the owners of the land; that these private fences were joined to and connected with cattle-guards of the railroad company; that the colt came down this public road from the west; that it could not have got upon the right of way of the railroad company, and to the point where it was struck and killed, except over the public road. This evidence precluded his right of recovery, and the defendants, demurrer to the evidence should have been sustained. If the colt came upon defendants' railroad track at a public road crossing, the defendants are not liable. It is the place where the colt came upon the track, and not the place where killed which fixes the liability. The defendants' second instruction refused by the court, should have been given. Nance v. Railroad, 79 Mo. 196; Moore v. Railroad, 81 Mo. 503; Ehret v. Railroad, 20 Mo.App. 258. The theory of the plaintiff seems to have been that the " crossing" included only that portion of the road in which planks were laid for wagons to pass over, and that if the colt was struck at any other point within the sixty feet in width, forming such public road, that the company is liable for double damages. This is not the law; for if the colt came upon the railroad at a point included in the public road where it crosses the railroad track, the company is not liable. And this rule applies to all parts of the public road whether used by the public or not. Ehret v. Railroad, 20 Mo.App. 252. So the court erred in refusing defendants' fifth and seventh instructions. (3) There is no evidence to sustain a verdict against defendants in this case. All the evidence shows that the colt was struck and killed and came upon the track at a public crossing?? There is no evidence to the contrary. The jury were misled by the instruction given for the plaintiff and the refusal of proper instructions for defendants.

Winters & Keller and M. Bingham, for the respondent.

(1) " It is the duty of every railroad corporation in this state to erect and maintain lawful fences on the sides of said railroad where the same passes through, along or adjoining inclosed or cultivated fields, or uninclosed lands, * * * and also to construct and maintain cattle-guards, where fences are required, sufficient to prevent horses, mules, cattle and all other animals from getting upon the railroad; and until such fences * * * and cattle-guards 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." Laws 1885, p. 88. (2) " If the animal came upon the right of way of defendants' railroad, and was struck and killed at a point where it was the duty of defendants to erect and maintain lawful fences, as well as cattle-guards, but owing to defendants' failure so to erect such fences and cattle-guards the animal was killed, they are liable in double the amount of damages sustained by reason of such failure." Laws 1885, p. 88. (3) The petition in this cause is sufficient to authorize a recovery. Sloan v. Railroad, 74 Mo. 47; Edwards v. Railroad, 74 Mo. 117; Periquez v. Railroad, 78 Mo. 91; Blakely v. Railroad, 79 Mo. 388; Moore v. Railroad, 81 Mo. 502. (4) Whenever the building of a fence would have prevented an accident to domestic animals, then the negligence of a railroad company in not fencing its road is the cause of the injury. Halvorson v. Railroad, 19 N.W. 570. And had the defendants erected and maintained proper fences and cattle-guards at the point complained of, the animal could not have entered the pocket in which it was caught and killed. (5) If the animal was struck and killed at a point on the company's right of way outside of the sixty feet embraced in the public road crossing, and came to such point by reason of the failure of defendant to erect fences, etc., on the sides of its right of way, the company is liable even though the animal came upon the right of way from a public crossing. 87 Mo. 88; 34 N.W. 538; 20 Mo.App. 258. (6) The photograph of the locality fails to show the true condition of the railroad and public road at the time of the injury, and besides it was taken after the railroad had been fenced and changed by the company. All of the testimony, except that of the engineer in charge of train, shows that the colt was struck and killed inside the sixty feet forming the public road.

RAMSAY J.

This is an action under section 809 of the Revised Statutes, commonly known as the double-damage act, for killing a two-year-old colt, belonging to plaintiff. The statement filed with the justice of the peace, and upon which the cause was tried in the circuit court, omitting caption and formal allegations was worded as follows: " That on or about the seventh day of December, 1886, defendants, by its agents, trustees servants and employes, while running a locomotive and train of cars over said railroad, in said Liberty township, run the same over and against, struck and killed one two-year-old colt, and that said colt was, at the time of said killing, the property of plaintiff, and...