Dow v. Kansas City Southern Ry. Co.

• Decision Date: 13 February 1906
• Parties: DOW v. KANSAS CITY SOUTHERN RY. CO.
• Court: Missouri Court of Appeals

92 S.W. 744

116 Mo. App. 555

DOW v. KANSAS CITY SOUTHERN RY. CO.

St. Louis Court of Appeals. Missouri.

February 13, 1906.

1. HIGHWAYS—ESTABLISHMENT BY PRESCRIPTION.

The use of a road by the public for more than 10 years establishes it as a public highway by adverse use.

2. SAME—PUBLIC CHARACTER—QUANTITY OF USE.

The public character of a road does not turn on the quantity of travel if the thoroughfare is open and in use by all having occasion to go over it.

3. SAME — FAILURE OF COUNTY TO WORK ROAD.

On issue as to whether a road was a public highway the fact that it had never been worked by the county was an immaterial circumstance, where it appeared that the public had used the road for over 10 years.

4. RAILROADS — HIGHWAYS — DUTY TO FENCE CROSSING.

Railroads are not required to fence roads which are public highways de facto.

5. TRIAL—DIRECTION OF VERDICT.

Where plaintiff's evidence made out defendant's case, a verdict for him should have been directed on request at the close of plaintiff's case.

6. SAME.

Where, after a denial of defendant's motion for a directed verdict at the close of plaintiff's case, defendant introduced evidence, but none of it assisted the plaintiff's case, defendant's request for the direction of a verdict at the close of all the evidence should have been granted.

Appeal from Circuit Court, Newton County; Henry C. Pepper, Judge.

Action by Ben Dow against the Kansas City Southern Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Cyrus Crane and O. L. Cravens, for appellant. Horace Ruark, for respondent.

GOODE, J.

This action was instituted to recover damages for the killing of two mares belonging to plaintiff. The petition was in two paragraphs, of which the first was founded on section 1105 of the Revised Statutes of 1899, and asked for double damages on an averment that the animals went on the railroad track at a point where the law required defendant to fence its right of way, but which it had failed to do. The second paragraph prayed for single damages and alleged the animals were killed in consequence of the negligent manner in which the engineer and trainmen handled the train. Plaintiff lived some five miles south of the point of the accident. His mares went on the railroad track from a road or inclosed lane, the width of which was probably from 16 to 20 feet, though the fact cannot be ascertained certainly from the testimony. This lane ran immediately north of the farm of a man named Eppard. Defendant's railroad ran north and south on the west of or through Eppard's farm, and running north and south on the west of the farm was a public highway into which the lane opened. Eastwardly from the lane the country was rough and hilly, and after the lane opened into this broken country, it was no longer fenced but branched into several wooded roads or trails over the hills. When the railroad was built, the lane was treated as a public highway, and cattle guards and wing fences were constructed across the railroad track on either side of it to prevent cattle straying from the lane along the right of way. Evidence was introduced having some tendency to prove the train could have been prevented from colliding with the animals by careful management; but there was evidence to the contrary, and the jury returned a verdict for defendant on that cause of action, thereby acquitting it of negligence. The court left it to the jury to determine whether or not the lane from which the animals entered the right of way had been opened and used merely for a private outlet or way of convenience, and not as a traveled public highway, with a direction to return a verdict for plai...