Gilpin v. Missouri, K. & T. Ry. Co.

• Decision Date: 30 May 1906
• Citation: 197 Mo. 319,94 S.W. 869
• Court: Missouri Supreme Court
• Parties: GILPIN v. MISSOURI, K. & T. RY. CO.

94 S.W. 869

197 Mo. 319

GILPIN v. MISSOURI, K. & T. RY. CO.

Supreme Court of Missouri, Division No. 1.

May 30, 1906.

1. RAILROADS—FENCES AND CATTLE GUARDS— DUTY TO MAINTAIN.

Under Rev. St. 1899, § 1106, making railroads liable for live stock killed after having gone on the right of way at a place where it is unfenced, a railroad company is not required to maintain cattle guards at places where they would endanger employés.

2. SAME—KILLING OF STOCK — ABSENCE OF CATTLE GUARD—BURDEN OF PROOF.

Under Rev. St. 1899, § 1106, making railroads liable for live stock killed after having gone on the right of way where it is unfenced, the burden is on the railroad company, after plaintiff in an action under the statute has made out a prima facie case, to show that the absence of cattle guards was excusable because their presence would endanger employés.

3. TRIAL—DEMURRER TO EVIDENCE.

On a demurrer to the evidence, plaintiff's evidence must be taken as true, and every favorable

inference which the facts will warrant drawn in his favor.

4. RAILROADS—KILLING ANIMALS ON TRACK —ABSENCE OF CATTLE GUARDS—SWITCH TRACKS.

In an action against a railroad company, under Rev. St. 1899, § 1106, making railroads liable for live stock killed after having gone on the right of way at a place where it is unfenced, plaintiff's evidence proved that the animal killed went on the track at a place where there were no wing fences or cattle guards, but also showed that at that point there were three parallel tracks, two of which were switch tracks, and an expert witness for plaintiff testified that cattle guards at the point in question would endanger employés engaged in switching. Held, that plaintiff's own evidence showed that because of danger to its employés the railroad company was not required to put in cattle guards at the point where the animal entered on the tracks, so that a demurrer to the evidence should have been sustained.

Appeal from Circuit Court, Boone County; John A. Hockaday, Judge.

Action by George A. Gilpin against the Missouri, Kansas & Texas Railway Company. From a judgment for plaintiff, defendant appealed to the Kansas City Court of Appeals, from whence the cause was certified to this court. Reversed.

See 77 S. W. 118.

Geo. P. B. Jackson, for appellant. E. W. Hinton and Webster Gordon, for respondent.

VALLIANT, J.

Plaintiff sues under section 1106, Rev. St. 1899, to recover the value of his mare, killed by falling off a railroad bridge belonging to defendant. The facts shown by plaintiffs' evidence are substantially as follows: A public road crosses the railroad at a point just east of the village of McBaine, in Boone county. On each side of defendant's railroad east of the public road was a fence inclosing the right of way. There was at this time no cattle guard or wing fences at this crossing to prevent animals entering upon the tract or right of way. Such cattle guard and wing fences had been there originally, when there was only the main track of the railroad, but for a year or more, and after the building of the Columbia Branch track, there were three—that is, one main track and two side or switch tracks crossing this public road—and when those two additional tracks were put in the cattle guard and wing fences were removed. There is a switch at each end of each one of these side tracks. Those at the west ends were west of the crossing, and those at the east end were east of the crossing. About 7 or 8 o'clock in the evening of September 1, 1901, plaintiff's mare got loose from a post in the village at which she had been hitched, and strayed onto the railroad, entering presumably at this crossing and going east. Shortly afterwards a freight train came along going east. The next morning the mare was found dead in the bed of a dry creek near a bridge from which she had apparently fallen. The evidence on the part of defendant tended to show that in the movement of its trains it was necessary for its employés in operating these switches to pass on foot over the tracks at this crossing and that a cattle guard there would endanger their lives. Defendant's testimony also showed that as this freight train was going along that night the engineer saw the horse on the track in front running toward the bridge, that he "slowed up" his train, and the animal went on ahead and got out of sight. The engineer, knowing that there was a bridge in front of him, and realizing the danger to himself and his train of encountering an animal on the bridge, stopped the train, and he and the head brakeman went forward to reconnoiter, and when they got to the bridge they found that the mare had jumped or fallen off and was lying under it. The cause was tried by the court, jury waived. There was a judgment for the plaintiff for $150, and defendant appealed to the Kansas City Court of Appeals, where the judgment was reversed on the ground that, the uncontradicted evidence on the part of the defendant having shown that a cattle guard at that crossing would endanger the lives of the railroad employés operating the switches, it was not negligence on the part of the defendant not to have a cattle guard there, but one of the judges of that court deeming that ruling contrary to the decision of this court in Gannon v. Gas Co., 145 Mo. 502, 46 S. W. 968, 47 S. W. 907, 43 L. R. A. 505, the cause was certified to this court.

Section 1106, Rev. St. 1899, on which this action is founded, is as follows: "Whenever any live stock shall go in upon any railroad or its right of way, in this state, and the said railroad is not at such place or places inclosed by a good fence on both sides of said railroad, such as is by law required, and such stock, by being frightened or run by any passing locomotive or train on said railroad, shall be injured or killed by or because of having run against the fence on either side, or into any culvert, bridge, slough or mire, or other object along the line of said road, the railroad company shall pay the owner of any such stock so injured or killed the damage sustained." According to the interpretation that this court and our Court of Appeals have in several cases put upon that statute, no liability will attach to a railroad company for failing to put a cattle guard in a place where to do so would endanger the lives or limbs of its employés. There is no such express exception written in the statute, but to construe it otherwise would make its meaning unnatural....