Burlington & Missouri River Railroad v. Franzen

• Decision Date: 18 January 1884
• Citation: 18 N.W. 511,15 Neb. 365
• Parties: THE BURLINGTON & MISSOURI RIVER RAILROAD, PLAINTIFF IN ERROR, v. FRANK FRANZEN, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

18 N.W. 511

15 Neb. 365

THE BURLINGTON & MISSOURI RIVER RAILROAD, PLAINTIFF IN ERROR, v. FRANK FRANZEN, DEFENDANT IN ERROR

Supreme Court of Nebraska

January 18, 1884

ERROR to the district court for Cass county. Tried below before POUND, J.

AFFIRMED.

Marquett Deweese & Hall, for plaintiff in error.

Chapman & Beeson, for defendant in error.

OPINION

MAXWELL, J.

This is an action brought by the defendant in error to recover the value of a cow killed by the cars of the plaintiff at a point on its railroad where it was required by statute to fence its track but had failed to do so. The railroad company in its answer admits that the cow was killed by an engine on its railroad track, which at the time was operated by the company's agents, and that notice and affidavit of the killing were duly served on the company's agents, etc. For further answer it is alleged "that said killing occurred by reason of the fault and negligence of the plaintiff, and without any fault or negligence on the part of the defendant." There is no reply, and it is strongly urged on behalf of the plaintiff in error that the allegation of negligence is thereby admitted, and thereby the company excused. On the trial of the cause in the court below a verdict was returned in favor of the defendant in error, upon which judgment was rendered.

It appears from the testimony that the animal in question was killed a short distance east of Cedar Creek village, in Cass county; that at the place where the accident occurred the track runs near the Platte river, there being a shallow channel of the river between the south bank and an island on which the defendant pastured his cattle. It also appears that it was the duty of the company to fence its track at this point, and that it had constructed a fence on the south side but none on the north. There is no claim that the defendant's cattle were willfully on the track, and the proof fails to show negligence. But even if negligence was admitted it would afford no excuse where stock is killed by the cars at a point on a railroad where it is its duty to fence the track but it fails to do so. The question here presented was before this court in the case of The B. & M. R. R. Co. v. Brinkman, 14 Neb. 70, 15 N.W. 197, and it was there held that the liability of the railroad company exists by reason of the statute, without regard to the question of negligence. The statute declares in substance that...