Harrington v. Chicago, Rock Island & Pacific R.R. Co.

• Decision Date: 30 April 1880
• Citation: 71 Mo. 384
• Court: Missouri Supreme Court
• Parties: HARRINGTON v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILROAD COMPANY, Appellant.

71 Mo. 384

HARRINGTON

v.THE CHICAGO, ROCK ISLAND & PACIFIC RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

April Term, 1880.

Appeal from Platte Circuit Court.--HON. GEO. W. DUNN, Judge.

REVERSED.

This was an action under the 43rd section of the railroad law to recover double damages for the killing of a mare belonging to plaintiff. The railroad company had made a farm crossing over its road for one Elliott Miller, who owned land on both sides of the road. Instead of gates with latches or hooks for a fastening the company had provided sliding panels in the fences. These panels, Miller testified, were satisfactory to him. The fences were of the lawful height and in good repair. The evidence tended to show that plaintiff's mare, with other stock, were led by a breachy mule belonging to plaintiff over a division fence between plaintiff and Miller into Miller's field, from which the mare came upon the railroad track through the sliding panel and was injured. This panel had been left open by Miller the eving before the accident, or perhaps the same evening it occurred. The court instructed the jury to the effect that if the company had failed to erect at the openings in their fences, gates hung and provided with latches or hooks, so as to be easily opened or shut, it was liable, and refused to instruct that there was no liability if the mare jumped from plaintiff's inclosure into the inclosed field of Miller and from thence passed through the open gate into the railroad inclosure, and also that the company was bound only to use ordinary diligence in keeping its gates closed, and was not liable unless the gate in question was left open through the negligence of its employees. There was a verdict and judgment for plaintiff, from which defendant appealed.

Shanklin, Low & McDougal for appellant, cited Berry v. R. R. Co., 65 Mo. 172; Spinner v. R. R. Co., 67 N. Y. 158; Murray v. R. R. Co., 43 N. Y. (4 Keyes) 277.

Doniphan & Reed for respondent, cited Marietta, &c., R. R. Co. v. Stephenson, 24 Ohio St. 48.

HENRY, J.

In the case of Berry v. St. Louis, Salem & Little Rock R. R. Co., 65 Mo. 172, it was held by this court that: “The duty of fencing the sides of their roads through inclosed and cultivated fields, is imposed upon railroad companies for the benefit of the owner or proprietor of such fields and inclosures. * * The cattle of a stranger which are on the premises of the adjoining proprietor, without right, are not within the protection of the statute.” If the fence around the field of the adjoining proprietor...