Hawkins v. St. Louis & San Francisco Ry. Co.

• Decision Date: 11 March 1918
• Docket Number: No. 2195.,2195.
• Citation: 202 S.W. 1060
• Court: Missouri Court of Appeals
• Parties: HAWKINS v. ST. LOUIS & SAN FRANCISCO RY. CO. et al.

202 S.W. 1060

HAWKINS v. ST. LOUIS & SAN FRANCISCO RY. CO. et al.

No. 2195.

Springfield Court of Appeals. Missouri.

March 11, 1918.

On Motion for Rehearing, April 20, 1918.

Appeal from Circuit Court, Shannon County; E. P. Dorris, Judge.

Action by Joseph Hawkins against the St. Louis & San Francisco Railway Company and others. From a judgment for plaintiff, defendants appeal. Reversed and remanded, with directions to modify and re-enter judgment.

W. F. Evans, of St. Louis, and W. J. Orr, of Springfield, for appellants. J. W. Chilton, of Winona, for respondent.

STURGIS, P. J.

This is a suit under the double damage statute for killing a steer by collision with a railroad train at a place where the railroad is required to be, but was not, fenced. The parties agreed on the facts, inclusive of the value and ownership of the animal and the place where it was struck and killed. The first contested point is whether the place where the animal was killed was a public crossing, in which event no fence would be required. The plaintiff contends that such place was a private or farm crossing where fences are required with openings and gates therein, instead of being left open with cattle guards and wing fences as at public road crossings. The parties agreed:

"That the animal was struck on a crossing of a wagon road leading from a county highway through a lane across the railroad tracks to plaintiff's dwelling, said lane ending at plaintiff's dwelling."

A plat put in evidence shows that the railroad runs east and west, and that the plaintiff's house is in his field a short distance north of the railroad, the field extending down to the railroad right of way. On and adjoining the railroad on the south is the "county", public road running parallel therewith. The lane in question extends from plaintiff's house south to the public road, crossing the railroad just before it connects with the public road. This is all the evidence on this point, and from this we may infer that the lane was used by plaintiff in going to and from his house to the public road. The inference also is that no one other than plaintiff used this lane or crossing unless some neighbor or stranger did so in going to and from plaintiff's house. With no evidence as to its public use and nothing to show that it was dedicated as a public or statutory private road, the court was justified in finding, if such was not the necessary finding, that this was only a farm crossing necessary for the use of the adjoining landowner: Section 3145, R. S. 1909. The Supreme Court, in St. Louis v. Bell Place Realty Co., 259 Mo. 126, 134, 168 S. W. 721, held that in order to be a public road a way open and fixed for travel thereon must be one on which the public has a right to, or does in fact, travel, and that one which is only open to particular individuals, "as, for instance, by persons owning property adjoining or fronting on such vacant ground," is not a public road. A lane similarly situated and used as is this one was held in Jenkins v. Railroad, 27 Mo. App. 578, not to be a public highway either de jure or de facto, and not to excuse the railroad from fencing same with gates therein as for a farm crossing. In that case it was held error to instruct the jury that a lane through which the cattle killed went onto the railroad, and which had been kept open and used as a private outlet for the convenience of the adjacent landowner, and which had been so kept open and used for more than ten years, was such a public or statutory private road as permitted the railroad to leave it open by constructing cattle guards and wing fences. To the same effect is the reasoning in Dow v. Railroad, 116 Mo. App. 555, 92 S. W. 744, and in Sikes v. Railroad, 127 Mo. App. 326, 329, 105 S. W. 700.

The parties further agreed:

"That after the construction of said road through said farm at the request of the owner the Current River Railroad Company installed in 1909 cattle guards on said crossing, the same as are installed at public crossings instead of gates as required for farm crossings, and said crossing has been maintained with cattle guards instead of gates up to the present time; that plaintiff purchased said lands in 1913, and has not at any time requested the removal of said cattle guards and the installation of gates. And at the time of the killing of plaintiff's animal on this crossing there were no gates, but simply these guards. Plaintiff was not informed of the request by his grantor for cattle guards instead of gates."

On these facts defendant urges that plaintiff is estopped to take advantage of defendant's failure to fence at this point. There is some justice in this contention, seeing that, when this method of giving the landowner a convenient outlet was adopted at the instance and for the convenience of the then landowner, it was open and obvious as a part of the permanent improvement of the farm when plaintiff purchased the same. It is urged that plaintiff should at least have notified defendant that he declined to abide by this arrangement and given it an opportunity to put in gates. The cases cited by defendant, however, go no further than to hold that a verbal agreement with the landowner, dispensing with fences at a place required by statute to be fenced, is binding on him, but no one else. The reason for so holding is that the statutory requirement as to fencing a railroad is not solely for the benefit of the adjacent landowner, but for the benefit of the public in general and is a police regulation for the safety of passengers, trainmen, etc. Rinehart v. Railroad, 126 Mo. App. 446, 454, 80 S. W. 910; Reed v. Railroad, 112 Mo. App. 575, 583, 87 S. W. 65; Madison v. Railroad, 60 Mo. App. 599, 606; Busby v. Railroad, 81 Mo. 43, 49. It is expressly held in Thomas v. Railroad, 82 Mo. 538, that a contract dispensing with fences where same are required by statute is personal to the landowner making same, and not binding on a subsequent owner, the court remarking:

"But parol agreements for the removal or discontinuance of a fence on the line of a railroad between the owner of the land and the railroad company, does not run with the land, and cannot bind the grantee."

An examination of the cases there cited shows that they uphold the ruling that a parol agreement made by the former landowner dispensing with fencing, even if precluding him from a recovery of any damages accruing from the failure to fence, does not bind the plaintiff as his successor in title. See, also, Nolon v. Railroad, 23 Mo. App. 353; Meadows v. Railroad, 82 Mo. App. 83, 92; White v. Railroad, 185 Mo. App. 425, 431, 170 S. W. 923. The court's ruling therefore on this point is correct.

The next contention of the defendant relates to the right and jurisdiction of the state court to enter judgment in this proceeding; such contention being based on the fact that the suit is against the receiver of the railroad doing the injury and the purchaser of such railroad at a sale of same by decree of the federal court in the receivership proceeding. The defendant, whose duty it is to present the record to this court, has so abbreviated the same as to leave some facts largely to conjecture. The petition is printed as if the railroad company alone was defendant. It does not show when the suit was commenced or against whom or that another defendant was brought into the case. It is not till we come to the instructions that we find that both the receiver and the defendant railway company were defendants; such defendants each asking a peremptory instruction in his or its favor. The facts as we gather them from the statements in this court, together with the record, are these: The animal was killed on May 24, 1916, by a train operatel by James W. Lusk, receiver of the Frisco Railroad System, appointed such by the federal court of the Eastern district of Missouri on May 27, 1913. This suit was brought against such receiver about October 1, 1916, in a justice of the peace court in Shannon county, Mo., where the animal was killed. The receiver made no defense in that court, but appealed same to the circuit court, where same came on for trial at the May term, 1917. At such trial it was agreed that the decree of sale in the receivership proceeding provided:

"The purchaser or purchasers of any property described in article 26 or article 27 of this decree, and his or their successors and assigns, shall, as part of the consideration for and of the purchase price of the property purchased, and in addition to the sum bid by them and elsewhere in this decree required to be paid by him or them, take such property and receive the deeds or other instruments of conveyance and transfer thereof upon the express condition that he or they, or his or their successor or assigns, shall pay, satisfy, and discharge: * * * Also any unpaid indebtedness and liabilities of the receivers incurred in this cause, or in any of the constituent causes in the management or operation of the property purchased and otherwise in the discharge of their duties as such receivers between May 27, 1913, the date of their appointment, and the date of the delivery by the receivers of the possession of the property sold, * * * to the extent that they have not been paid or shall not have been paid out of moneys in possession of the receivers; * * * that the parties to receive sold pay, and the amounts to be paid and received under this article 9, unless agreed upon by the parties in interest, shall be fixed and adjudged by this court, and this court reserves the right and retains the power and jurisdiction so to do, and the right, power, and jurisdiction to take back and resell any property that shall be sold under this decree in case the purchaser or purchasers, or his or their successors, shall fail to pay any of the claims mentioned in this article 9, when by this court required. * * * In the event that any purchaser or his successor or assigns, after demand...