Brown v. St. Louis-San Francisco Ry. Co.

• Decision Date: 02 March 1926
• Docket Number: No. 3925.,3925.
• Citation: 281 S.W. 452
• Parties: BROWN v. ST. LOUIS-SAN FRANCISCO RY. CO.
• Court: Missouri Court of Appeals

281 S.W. 452

BROWN v. ST. LOUIS-SAN FRANCISCO RY. CO.

No. 3925.

Springfield Court of Appeals. Missouri.

March 2, 1926.

Appeal from Circuit Court, Pemiscot County; H. C. Riley, Judge.

Action by Henry Brown against the St. Louis-San Francisco Railway Company. From a judgment for the plaintiff, defendant appeals. Reversed and remanded.

E. T. Miller, of St. Louis, and Ward, Reeves & Oliver, of Caruthersville, for appellant.

H. E. Doerner, of Steele, and Sheppard & Hawkins, of Caruthersville, for respondent.

BRADLEY, J.

This is an action commenced in a justice of the peace court to recover double damages for two mules alleged to have been killed by defendant's train. The cause was tried in the circuit court before the court and a jury. The jury returned a verdict for $400, and this was doubled and judgment entered accordingly, and defendant appealed.

The petition alleges that the mules entered upon the right of way "by reason of the failure of said defendant to erect and maintain good and lawful fences with gates therein with latches or hooks thereon which could be easily opened and shut where said mules entered." The gate in question had a latch, but plaintiff claims it was defective and did not function.

Defendant assigns error on (1) the refusal of its peremptory request at the close of the whole case; (2) on the admission of evidence and (3) on the instructions given for plaintiff.

The demurrer is based upon two propositions: (1) That no causal connection was shown between the alleged defective latch and the killing of the mules; and (2) that the gate in question was at a private farm crossing, and was for the benefit of the farm proprietor, plaintiff, and that he knew of the defective condition of the latch, if such existed, for a great length of time, and made no complaint, but acquiesced therein, and therefore ought not to be heard to complain.

Defendant contends that no reasonable conclusion can be drawn from the evidence other than that some unauthorized person left the gate open, and that by reason thereof plaintiff's mules got upon the railroad. If such was the case, then defendant is not liable. The defect in the fastening of the gate must have been the proximate cause of the mules getting on the track. Bowen v. Railroad, 96 S. W. 1009, 198 Mo. 654. There were two gates at this crossing; one on the east side, and one on the west side. Plaintiff resided about a quarter of a mile east of the east gate. His mules were in the lot about 9 o'clock on the night they were killed. Some time after that hour they got out of the lot and on the railroad track. Plaintiff testified respecting the latch on the east gate as follows:

"The crossing was just where people crossed, going from one side of the farm to the other— just a farm crossing. It wasn't a public road. They were maintaining good gates there just prior to the time of this injury, but the latches wasn't no count; they were sprung and hung down, caught the gate like that (indicating), and the inside latch hung this way (indicating), and could just go back and forth (indicating). There was a latch on the north side of the gate to catch it and hook it, but it would swing back east. When the gate was closed, there wasn't anything to hold it closed; the wind blowed it back, blowed it open."

Plaintiff's brother, Will Brown, testified:

"My brother's mules were in the lot the night before, and they got out of the lot. Then I tracked them where they went through this open gate onto the railroad right of way. I was through this gate every day. I saw it the evening before. I went through there pretty late in the evening, and it was pulled to. I went through it. I just pulled it to. The latch on one side was broke down; you could raise it up. It had been broke down ever since I moved down there. That latch was already on one side. I tried to fasten it several times."

Plaintiff offered other evidence respecting the latch, but it is not necessary to further mention such evidence.

Will Brown, on cross-examination, testified as follows:

"Q. Didn't you tell your brother somebody went through there in an automobile and left the gate open? A. It could be that; I didn't see them. I haven't changed my mind about it. Q. You told P. R. Smith (claim agent) somebody went through in an automobile and left the gate open. A. I said they went through. I told him that gate was fastened late in the evening when I went through there; I fastened it; it was pulled to. I don't recollect that I told him it was fastened; I think my recollection was as good then as it is now. On September 6, 1923, I could remember those things as well as I can now remember them, I heard an automobile go through that gate that night; it was after dark, 7 or 8 o'clock. I had gone to bed. I don't know how many I heard go through; I had gone to sleep, but I don't think only the one. I only saw one track, for I looked for automobile tracks the next morning, and that's why I said the gate was left open; it was standing wide open the next morning, the best I recollect. We tried to keep the gate closed most of the time. Sometimes we couldn't—generally open every morning. I don't know who would open it. I don't recollect telling Mr. Smith this particular gate on the east side was nearly always kept closed because it had a good latch on it; we tried to keep them both closed."

Boone Thompson testified that he, with two others in an automobile, passed through this gate about 7 or 8 o'clock on the night that the mules were killed. He is not definite as to whether the gate was open when he approached it, but testified positively that he closed it after passing through. Will Brown, as will appear from his evidence, supra, testified that on the next morning he looked at the gate for automobile tracks, and saw only one track. Under the facts and circumstances in evidence, the question of the proximate cause of the gate being open so the mules could enter was for the jury. Duncan v. Railroad, 3 S. W. 835, 91 Mo. 67, loc. cit. 70.

Defendant relies upon Francis v. Railroad, 93 S. W. 876, 118 Mo. App. 435, and Harrington v. Railroad, 71 Mo. 384, to support the contention that plaintiff should not be heard to complain. In the Francis Case the cause of action was founded upon an alleged insufficient gate at a private farm (Tossing. The gate was hung on hinges, but fastened by means of a wire placed over the top of the gate post and the end of the gate, and not by latches or hooks as provided by the statute. It was held that plaintiff, because of his acquiescence, could not complain of the character of fastening provided for the gate. It appeared in that case that plaintiff himself had put a new wire on the gate, and said that it was well put on, and this, as we infer, was the fastening on the gate when the horse was killed. It also appears in the Francis Case that the gate was seen by plaintiff to be closed at noon preceding the night the horse was killed. At 5 o'clock a neighbor noticed that it was open, and thought he would close it, but forgot it. There was no evidence that the defendant's agents knew the gate was open, and the court ruled that It had not been open a sufficient time to imply notice. That case does not hold that a proprietor at a private farm crossing may, by acquiescence, preclude his right to complain of a defective gate or fastening. It does hold that he may preclude himself from complaining that the gate is not fastened as prescribed by the statute.

The Harrington Case, supra, holds that, if a farm proprietor at a private crossing is satisfied with a sliding gate, no one else has a right to complain. See, also, Atchison, Topeka & Santa Fé Ry. Co. v. Kavanaugh, 63 S. W. 374, 163 Mo. 54.

We think that the assignment in hand is ruled in effect by Donovan et al. v. Railroad, 1 S. W. 232, 89 Mo. 147. There recovery was sought to be defeated on the ground that plaintiffs had turned their cattle into their field when they knew that there was no fence along the right of way. The court in the course of the opinion said that an owner could not be deprived of the use of his land because of the neglect of the railroad company to construct fences, and ruled in effect that plaintiffs were not negligent in pasturing their cattle upon their own premises, although they knew that there was no fence along the right of way. By a parity of reason, if a proprietor can acquiesce in a fastening on a gate that would not keep it closed, he could acquiesce in no gate at all, because a gate open is no more protection than no gate at all. It is true that in the Donovan Case plaintiffs had sought to have a fence erected, but there is no intimation in that case or any other we have been able to find that, if they had not complained that such silence, however long, would have put them in a position where they could not have pastured their own field except at their own risk of damage from their cattle going upon the railroad track. It is our conclusion that plaintiff in the cause at bar did not and could not by his conduct excuse defendant from exercising ordinary care to keep the gate and fastening in question in reasonably good repair. The demurrer was properly refused.

Was defend...