Denver & R.G.R. Co. v. Robinson

• Decision Date: 10 June 1895
• Citation: 40 P. 840,6 Colo.App. 432
• Parties: DENVER & R.G.R. CO. v. ROBINSON.
• Court: Colorado Court of Appeals

40 P. 840

6 Colo.App. 432

DENVER & R.G.R. CO. v. ROBINSON.

Court of Appeals of Colorado

June 10, 1895

Appeal from county court, El Paso county.

Action by R.G. Robinson against the Denver & Rio Grande Railroad Company. There was a judgment for plaintiff, and defendant appeals. Reversed.

Wolcott & Vaile and William W. Field, for appellant.

Patrick & Essex, for appellee.

THOMSON J.

This action was brought by R.G. Robinson against the Denver & Rio Grande Railroad Company to recover the value of a mule killed by a locomotive engine managed and operated by the defendant. The plaintiff had judgment, from which the defendant appeals. The plaintiff was the lessee in possession of a ranch or farm in El Paso county, about 200 acres of which was a pasture field, surrounded by a fence. The track of the railroad company ran through this field. Its right of way through the pasture was not fenced; but from the point where the track left the field, going east, there was a fence on each side of it for a distance of about 800 feet to a bridge, across which the track was laid. Where the two fences commenced, they were about 180 feet apart; but they converged, until, at the bridge, the interval was only about 100 feet. There was thus inclosed a piece of ground shaped like a funnel. This inclosure contained two side tracks besides the main track. At the narrow end, the fences joined upon the bridge. At the other end, where the track left the field, there had at one time been cattle guards; but they were removed before the plaintiff leased the ranch, and the opening from the plaintiff's pasture into the funnel-shaped inclosure afterwards remained unobstructed. The plaintiff testified that he turned two mules, of which he was the owner, into his pasture field, in the evening, between sundown and dark. During the night, one of the mules was killed. He found it the next morning on the further side of the bridge, torn to pieces. He found blood, hair, and pieces of flesh upon the bridge, and mule tracks along the railroad track, going towards the bridge, and close to it. The other testimony for the plaintiff was, as far as it went, simply corroborative of his own. When the plaintiff rested, the defendant asked a judgment of nonsuit, which was denied.

We are unable to find any evidence in behalf of the plaintiff at the close of his case which would authorize a verdict in his favor. Assuming that, from the circumstances in evidence, it might be inferred that the animal was killed by a locomotive of the defendant, this is the utmost extent to which the evidence goes. But this is not enough. The fact alone that the defendant killed the mule fixes no liability upon it. The damage must have occurred through its negligence, or that of persons in its employ. There is no presumption of negligence its existence must appear by proof; and, until it does so appear, a party whose case is based upon it is without a cause of action. The plaintiff had no witness to the fact of killing the mule, and therefore did not produce evidence upon which negligence in the persons operating the engine could be predicated. Counsel do not claim that there was any proof of this kind, but find negligence in the character and condition of the inclosure. The argument is substantially as follows: The company was under no legal obligation to fence its right of way, but, if it elected to do so, it must not by its act increase the danger to animals straying upon its grounds. After it had made the funnel-shaped inclosure, it was its duty to maintain cattle guards on the west end; and the removal of the guards originally there, leaving the fences still standing, and the entrance to the inclosure open, was negligence for which it is answerable in this action. If this argument did not assume what it was necessary to prove, we should admit its force. There was at that time no law requiring the company to fence its right of way; but, if it was responsible for the maintenance of this inclosure, it was its duty to take proper precautions to prevent cattle from going within it. Left in the condition it was in, it was, as counsel characterize it a trap, from which cattle within it, when a train entered it from the west, had little chance of escape. An animal upon the track, frightened by an approaching train, and seeing a fence on either side, would naturally seek an outlet over the bridge, where it would be caught in the open spaces between the ties, and must inevitably be run upon if the train proceeded. In this state an owner of cattle may permit them to run at large; and surely, if a railroad company sees fit unnecessarily to fence its right of way, and in doing this makes an inclosure so contrived that there is easy access to it by cattle at one point, and no escape at any other, it cannot be acquitted of blame when an accident occurs as the direct consequence of its act.

But there is no evidence that the defendant constructed or maintained or had any control of the fences in question. Some of the witnesses, in speaking of them, used the expression "railroad fence"; and counsel seem to think that an inference ought therefore to be indulged in that the fences belonged to the railroad company. But the expression had no special meaning beyond the identification of the particular fence of which the witness was speaking. The plaintiff used the term to distinguish the fence he referred to from the "pasture fence"; and there is nothing to indicate that any witness intended to be understood as expressing an opinion...