Francis v. Quincy, O. & K. C. R. Co.

• Citation: 93 S.W. 876,118 Mo. App. 435
• Court: Court of Appeal of Missouri (US)
• Decision Date: 07 May 1906
• Parties: FRANCIS v. QUINCY, O. & K. C. R. CO.

93 S.W. 876

118 Mo. App. 435

FRANCIS v. QUINCY, O. & K. C. R. CO.

Kansas City Court of Appeals. Missouri.

May 7, 1906.

RAILROADS—FENCING RIGHT OF WAY—SALES —DEFECTS—REPAIR MADE BY LANDOWNER.

Under Rev. St. 1899, § 1105, requiring railroad companies to install gates at road crossings and provide them with latches or hooks, so as to be easily opened and shut, the owner of land through which a railroad passes cannot recover for injuries to an animal which went upon the track through an open gate, the fastening to which the landowner had himself constructed.

Appeal from Circuit Court, Sullivan County; John P. Butler, Judge.

Action by Arthur D. Francis against the Quincy, Omaha & Kansas City Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

J. G. Trimble and Wilson & Clapp, for appellant. Wattenbarger & Bingham, for respondent.

ELLISON, J.

Plaintiff brought this action for damages occasioned him by the loss of his horse killed by one of defendant's trains. He recovered judgment in the trial court.

The ground of plaintiff's action is that defendant maintained an insufficient gate at a farm crossing over its track where it passes through plaintiff's fields; and that, in consequence, the horse passed from his field through the gate onto the right of way, and was killed by a passing train. Since the verdict was for the plaintiff, we must assume to be true what the evidence tends to show, as well as all reasonable inferences to be drawn therefrom. An examination of the evidence has satisfied us that plaintiff was entitled to take the conclusion of the jury as to the animal getting in upon the right of way through the gate at the crossing.

But notwithstanding this, it appears that plaintiff has no legal ground for his action under the facts as they are shown to relate to the gate. The gate was hung on hinges. It was too short by from 10 to 16 inches, to reach over the space left in the fence as a gateway. The insufficient length of the gate was remedied by setting in a railroad tie or post, against what otherwise would have been the gate post. The gate was fastened by means of a wire placed over the top of the tie and the end of the gate. The plaintiff at some time prior to the time his mare was killed had concluded the wire then used was not sufficient and he, himself, put on a new one which he stated was well put on. The gate was seen by plaintiff to be closed at noon preceding the night in question; but at about 5 o'clock a neighbor noticed that it was open. He thought he would shut it but forgot it. Some time in the night the mare passed through. There is no pretense of any...