Butler v. Baker

• Decision Date: 22 December 1920
• Docket Number: (No. 6271.)
• Citation: 226 S.W. 827
• Parties: BUTLER v. BAKER.
• Court: Texas Court of Appeals

Page 827

226 S.W. 827

BUTLER v. BAKER.

(No. 6271.)

Court of Civil Appeals of Texas. Austin.

December 22, 1920.

Appeal from District Court, Falls County; Prentice Oltorf, Judge.

Action by George Butler against Jas. A. Baker, receiver. Judgment for defendant, and plaintiff appeals. Affirmed.

W. E. Rogers, of Marlin, for appellant.

Pat M. Neff and Walton D. Taylor, both of Waco, for appellee.

BRADY, J.

Appellant, as plaintiff below, sued to recover the value of a mule, alleged to have been killed on the right of way of the railroad, at a private crossing made for the convenience of R. A. Reed, who owned the land on both sides of the railroad. Appellant alleged that he was a tenant on the farm of Reed, and had access to the pasture land which lay on both sides of the right of way. The defendant pleaded that the right of way was fenced, and that the injury occurred at a place left open as a private crossing, and that the railway company was not responsible for the injury; there being no acts of negligence pleaded by the plaintiff. The trial was by the court without a jury, and judgment was rendered for the defendant.

The court filed conclusions of fact and law, which we adopt. The material facts are that the International & Great Northern Railroad was constructed through the inclosure of R. A. Reed, which included pasture land, leaving a part of such land on the east and a part of the same on the west side of the railroad. The track is fenced on both sides through the inclosure, and the fences sufficiently exclude from the right of way stock of ordinary disposition. The owner of the land handles cattle, and keeps same in the pasture on both sides of the railroad, but there is water on only one side. For the convenience and use of the owner, the railroad company made an opening in its fences, about 40 feet wide, and provided a private crossing over the track, at a point within the inclosure. This is the only opening or crossing in the inclosure. On both sides of the opening, the railroad company constructed cattle guards and wing fences connecting with the right of way fences, to prevent animals passing through the opening from entering upon the right of way or track adjoining the opening. The cattle guards and wing fences, on the date of the injury, were in good repair, and sufficient to exclude live stock from the right of way. The opening or crossing was made for the convenience of and as a way of necessity for the owner of the land, so that his cattle might freely pass from that part of the pasture containing no stock water to the other side of the track, where there was water. The opening was left in its present condition, with the consent and approval, if not by the express agreement, of Reed; and was not shown to be inappropriate to the needs and situation of the property, and the use thereof by the landowner, his tenants and employés.

Appellant was a tenant, occupying and cultivating land belonging to Reed, and adjoining the pasture land. He had the privilege of turning his stock into the pasture, but no other control over the pasture land.

Appellant's mule was struck and killed by a train while on the crossing, and was knocked or carried past the cattle guard into the fenced right of way. The mule was of the reasonable market value of $250. There was no evidence that the railroad employés saw the mule on the track in time to have avoided striking him, and no evidence of negligence of any kind on the part of such employés. The circumstances under which the mule was killed were not shown, except those circumstances indicating the point at which he was struck.

The court's conclusions of law may be summarized as follows: That the opening or private crossing was such as is permitted by the right of way fencing statute; that under the circumstances shown, the leaving of such crossing open, and the use of cattle guards and wing fences instead of gates was not negligence, and does not bar the defense that the railroad track was fenced within the purview of the statute; that under the facts the owner could not recover for the killing of an animal on such crossing or opening, and that the plaintiff being his tenant, and as such interested in the premises, and having the privilege of using the same, is in no position to complain of said crossing not being provided with gates; that, based upon the conclusions of fact, the plaintiff was not entitled to recover.

Opinion.

Appellant assigns as error that the conclusions of law by the trial court are not sustained by the findings of fact, especially because the railroad company had left an opening, 40 feet in width, without gates, for the convenience of the landowner; and that appellant, not having been a party to the agreement, and having the right to turn his animals into the pasture, the court should have held, as a matter of law, that the defendant was guilty of negligence in not fencing the right of way, and in not providing gates for the opening.

It is well settled that a railway company may gain a certain immunity from liability for killing...