Gorman v. Pacific R.R.

• Decision Date: 31 March 1858
• Citation: 26 Mo. 441
• Parties: GORMAN et al., Respondents, v. PACIFIC RAILROAD, Appellant.
• Court: Missouri Supreme Court

26 Mo. 441

GORMAN et al., Respondents,

v.PACIFIC RAILROAD, Appellant.

Supreme Court of Missouri.

March Term, 1858.

1. The owner of cattle is under no obligation to keep them on his own premises; if, however, he should permit them to roam at large and they should go upon the track of a railroad and be injured unavoidably, through no want of diligence and care on the part of the agents and servants of the railroad company, he would be without redress.

2. The degree of care to be exercised by a railroad company in preventing the destruction of property or other injuries must be proportioned to the dangerous nature of the means and instruments employed by it.

3. Though, as a proprietor, a railroad company is under no greater obligation to fence its road than any other owner of land is to fence the same, if the road be not fenced that fact should be considered in estimating the degree of care to be exercised by the company.

4. Railroad corporations, like natural persons, are subject to such reasonable police regulations as the legislature may prescribe for the preservation of the lives and property of the people; the legislature has power to require them to fence their roads and to erect and maintain cattle-guards at the road crossings, or to respond in damages for all injuries arising from an omission so to do, although their charters contained no reservation of such a power.

5. The 51st section of the general railroad act of February 24, 1853, (Sess. Acts, 1853, p. 121, 143,) requiring railroad corporations to erect and maintain fences along the lines of their roads where they pass through inclosed fields, and cattle-guards at all road crossings, was applicable to and binding upon the Pacific Railroad corporation whether the provisions of said act were accepted or not by said corporation.

6. In actions to recover damages for injuries sustained through the omission of a railroad corporation to fence its road as required by section 51 of the general railroad act of February 24, 1853, the question of care and diligence on the part of the corporation, through its agents and servants, can not arise. If the road be not fenced as required by law, it matters not that the highest care is exercised by the agents of the corporation.

Appeal from St. Louis Law Commissioner's Court.

This was an action to recover the value of three head of cattle alleged to have been killed by defendant through the negligence of its agents, in running over them a locomotive. It was further alleged that the cattle were killed at a point on the road where it ran through inclosed fields; that defendant had failed to erect and maintain fences as required by law; that the cattle were killed by reason of this failure.

The evidence showed that the cattle were killed at a point where the railroad ran through inclosed fields which were used as cattle yards; that the cattle killed were part of a lot of thirty or forty cattle that were placed in the cattle yards the night before the killing; that the fences along the line of the road were broken down during the night and the cattle went upon the track and three of them were run over by a locomotive and killed. There was evidence touching the sufficiency of the fence and of the diligence and care shown by defendant's agents in driving the locomotive.

The following instructions were given at the instance of the plaintiff: “1. If the jury believe from the evidence that the cattle mentioned in the petition were killed by defendant, their agent, agents or servants, by running over or striking them with their locomotive or train, and that where the cattle got upon the track the road runs through inclosed fields, and that defendant failed to erect and maintain, on the sides of the road through those inclosed fields, fences of the height and strength of a division fence and sufficient to prevent cattle and animals from getting on the railroad, and that it was by reason of said failure that the cattle mentioned got upon the road, they will find for plaintiffs the value of the cattle so killed. 2. If the jury believe from the evidence that the cattle mentioned in petition were killed by defendant through carelessness, negligence or mismanagement of defendant, their agents or servants, they will find for the plaintiffs the value of the cattle killed or injured. 3. If the jury believe from the evidence that on the night prior to the occurrence plaintiffs' cattle were in a pasture and that the fences were then all up and gates shut, and that by some means unknown they got out and without the knowledge or consent of plaintiffs, and that whilst so out they wandered upon the track of defendant and were killed by the locomotive and train of defendant, through carelessness of the agents or servants of defendant, they will find for plaintiffs.”

The defendant asked the court to give the following instructions: “1. If the jury believe from the evidence that the engineer in charge of the train at the time of the accident was at his place on the engine, and attentive to his duties there, and as soon as he saw the cattle used all means in his power to stop the train, and if the jury believe that the defendant had erected a legal fence on each side of their road, and that the cattle got on the road by breaking down said fence, then the defendant has been guilty of no negligence and the jury will find for the defendant. 2. If the jury believe from the evidence that the injury to the cattle was the result of accident alone, then the plaintiffs can not recover in this suit, and the jury will find for defendant. 3. If the jury find that after discovering the cattle on the track the engineer used all the means in his power to stop the train before coming to the cattle yards, and that he was running at the ordinary speed, then the company is not responsible for the cattle killed and the jury will find accordingly. 4. The law requires a fence, when built of posts and plank, to be four and a half feet high, and sufficiently close to turn small stock; and if the jury believe that the railroad company built such a fence, then they have complied with the law, and the plaintiffs' cattle were unlawfully on the road. 5. If the jury believe that the fence built by the company would turn ordinary cattle, it is a sufficient fence in law, and the cattle were unlawfully on the track and were trespassers thereon, and in such case the plaintiffs being in fault first, they cannot recover for killing them by the defendant's locomotive. 6. Gates and bars being for the exclusive benefit of the adjoining proprietor, such adjoining proprietor was bound to keep them closed, and this was not part of the duty of the company. 7. If the jury believe from the evidence that the fence erected by the defendant at the place of the accident, and which was there at the time of the accident, was a post and plank fence four and a half feet high, and sufficiently close, this was a legal fence. 8. The only direction of the law in regard to fences made of plank and posts is, that it should be four and a half feet high and sufficiently close.” Of these instructions the court gave those numbered 1, 2, 5, 6 and 8, and refused those numbered 3, 4 and 7.

The jury found for plaintiffs.

S. T. & A. D. Glover, for appellant.

I. The first instruction given at the instance of plaintiffs was erroneous. It declares that the defendant is bound by law to erect and maintain fences on each side of the road where it runs through inclosed fields, and for failing to do so is liable for every accident that may result directly or remotely from the want of such fences. The common law does not require such fencing. (Towanda R. R. v. Murger, 5 Denio, 255; 4 Comst. 350; Clark v. Syracuse R. R. 11 Barb. 112; Railway Co. v. Skinner, 19 Penn. 303; 6 Id. 472; Chicago & Miss. R. R. v. Patchin, 16 Ill. 198; Great Western R. R. Co. v. Thompson, 17 Ill. 131; 17 Ill. 541, 580; 2 Shelford on Railways, 679; 25 Verm. 122; Williams v. Michigan Central R. R. 2 Gibbs, 259.) Nor does the statute law. The legislature had no right to impose additional burdens upon the corporation. There is nothing to show that the company ever accepted the act of 1853.

II. The defendant's third instruction should have been given.

J. R. Barrett, for respondents.

I. Defendant by applying and receiving from the county of St. Louis special taxes, amounting to $1,200,000, levied and raised by virtue of the act of February 24, 1853, accepted said act. But it was not necessary that the company should accept said act to be bound by it. (Thorpe v. The Rutland & Burlington R. R. Co. 1 Williams, Verm. 141.) By the common law of Missouri fences are not made to keep cattle in, but to keep them out. (4 Ohio, State, 424, 474.) The fences on the sides of the road were insufficient, and defendant was therefore liable. (39 Maine, 273; 1 Williams, 141.) Plaintiffs were in no fault. Defendant was therefore liable for any damage done through carelessness or negligence. (8 Barb. 390; 14 Barb. 364; 23 Verm. 387; 24 Verm. 487.) Even supposing the fence to have been in accordance with the requirements of the law, there was clearly gross negligence on the part of the engineer.

SCOTT, Judge, delivered the opinion of the court.

It has always been the understanding as to the law in this state that our statute concerning inclosures entirely abrogated that principle of the common law which exempted the proprietor of land from the obligation of fencing it, and imposed on the owner of animals the duty of confining them to his own premises. No conviction has more thoroughly occupied the public mind than this, and nothing would sooner arouse the attention of the community than an apprehension that the old rule of the common law was to any extent to be revived. As early as the 27th October, 1808, the act for regulating inclosures became a law, and from that time the people have rested in the belief that they incurred no responsibility and were not guilty of any...