Colvin v. Sutherland

• Decision Date: 16 October 1888
• Parties: ROBERT COLVIN, Respondent, v. WILLIAM SUTHERLAND et al., Appellants.
• Court: Missouri Court of Appeals

32 Mo.App. 77

ROBERT COLVIN, Respondent, v. WILLIAM SUTHERLAND et al., Appellants.

Court of Appeals of Missouri, St. Louis.

October 16, 1888

Appeal from the Clark Circuit Court. --HON. BEN. E. TURNER, Judge.

REVERSED AND REMANDED.

Wood & Montgomery, for the appellants.

Instructions one and two given for plaintiff were erroneous. These instructions assert the proposition that a " reasonable safeguard," if in the form of a barbed-wire fence, must be at least four and a half feet high; that, if the safeguard was less than four and a half feet high, and so constructed as to injure an animal running into it; then defendants are liable, notwithstanding any fault or contributory negligence on the part of plaintiff. This proposition is certainly without authority in law. Montgomery v. Railroad, 90 Mo. 446; Ridenore v. Railroad, 81 Mo. 227; Braxton v. Railroad, 77 Mo. 455; Cooley on Torts 674; Smith v. Hardesty, 31 Mo. 411; Packet Co v. Vandergift, 34 Mo. 55; Callahan v. Warne, 40 Mo. 131; Liddy v. Railroad, 40 Mo. 506. Instruction number one is erroneous, in that it is inconsistent with itself. Seymour v. Seymour, 67 Mo. 303; Wood v Steamboat, 19 Mo. 529. We do not understand that the statute governing fences is applicable to barriers of this character. If so, the evidence discloses that defendants had strictly complied with the statute. Acts of 1887, p. 194. The principle is well settled in this state and others, that " he who suffers his cattle to run at large takes upon himself the risks incident to it." Knight v. Abert, 6 Pa.St. 472; Hughes v. Railroad, 66 Mo. 325; Turner v. Thomas, 71 Mo. 596; Hartfield v. Roper, 21 Wend. 615; S. C., 54 Am. Dec. 273; Trow v. Railroad, 24 Vt. 487; S. C., 58 Am. Dec. 191, and notes; Williams v. Railroad, 2 Mich. 259; S. C., 55 Am. Dec. 59; Cauley v. Railroad, 95 Pa.St. 398; S. C., 40 Am. Rep. 664. It appears from the evidence that plaintiff was guilty of carelessness or negligence, which contributed directly to produce the injury; hence the jury should have been instructed to find for defendants. Noland v. Shickle, 69 Mo. 336; Harland v. Railroad, 64 Mo. 480; Fletcher v. Railroad, 64 Mo. 484; Schaabs v. Wheel Co., 56 Mo. 173. The court did not acquire jurisdiction of the cause. The aggregate amount demanded in the petition exceeded the jurisdiction of the justice, and jurisdiction could not be given by entering a remittitur in the circuit court. Bachelor v. Bess, 22 Mo. 402.

Matlock, Hiller & Howard, for the respondent.

Every one who lawfully interferes with a public highway so as to render it dangerous to passengers is bound to guard against such danger, and if he does not he is liable to an action for negligence. Whittaker's Smith on Negligence, 113. And where a power or license is given to interfere with a highway, it is an implied condition that at least ordinary care shall be taken, and where privileges are bestowed on corporations with such powers, something more than ordinary care is demanded. Potter v. Bunnell, 20 Ohio 150; Veazie v. Railroad, 39 Me. 119. The act of 1887, at page 194, provides that all fences composed of posts and wire, shall be at least four and one-half feet high, with posts set firmly in the ground, not more than eight feet apart, and the wires securely fastened thereto, and placed at proper distances apart, so as to resist horses, cattle, swine, and other live stock. We insist that a barbed-wire fence placed along the side of a public road, if less than four and one-half feet high, with the wires fastened more than eight feet apart, and not set firmly in the ground, and the wires not fastened securely thereto, and placed at proper distances apart, so as to resist horses, cattle, swine, and other live stock, would, on account of the dangerous character of the barbs attached to the wires, render the owners of such fence liable for injuries to stock occasioned thereby. Weatherhead v. Bray, 7 Ind. 106. A nuisance is anything that worketh hurt, inconvenience, or damage to another, as if one does an act in itself lawful, but being done in a particular place necessarily tends to the damage of another's property, it is a nuisance. Norcoss v. Thoms, 15 Me. 503; Ellis v. Railroad, 63Mo. 131.

OPINION

ROMBAUER P. J.

The defendants were railroad contractors, and as such engaged in excavating the roadbed for a railroad at right angles across a public highway. The proposed excavation at that point was sixteen feet deep. The defendants, to guard the public, erected a post and wire fence, commonly known as a barb-wire fence, across the public highway on each side of the railroad excavation, and at some little distance therefrom, and deflected the public road at that point so that it crossed the roadbed by a detour on a level, returning into the old roadbed on the other side.

The evidence tended to show that the plaintiff's mare, while running at large, ran against the barb-wire fence thus constructed and was seriously injured. Upon a trial of the cause the plaintiff had judgment for the value of the mare. No complaint is made as to the extent of the recovery, provided any recovery is warranted by the law and evidence.

The substantial complaints made by the defendants are that the court erred in not dismissing the suit for want of jurisdiction; that it misdirected the jury as to the law, and that the verdict is not supported by the evidence.

I. The cause originated before a justice of the peace. Plaintiff's statement contained two counts, each stating the same cause of action in somewhat different phraseology and each concluding with a prayer for judgment for one hundred dollars damages. Defendants moved in the circuit court to dismiss the suit because it was an action of tort, and the damages sought to be recovered were two hundred dollars, and thus the suit was one beyond the justice's jurisdiction. This motion was properly overruled. It is obvious, from the statement, even without the explanatory...