Hildebrand v. C. B. & Q. R. R. Company

• Decision Date: 13 September 1932
• Docket Number: 1744
• Citation: 13 P.2d 1081,44 Wyo. 488
• Parties: HILDEBRAND v. C. B. & Q. R. R. COMPANY
• Court: Wyoming Supreme Court

13 P.2d 1081

44 Wyo. 488

HILDEBRAND v. C. B. & Q. R. R. COMPANY

No. 1744

Supreme Court of Wyoming

September 13, 1932

APPEAL from the District Court, Niobrara County; CYRUS O. BROWN Judge.

Action by Robert Hildebrand against the Chicago, Burlington & Quincy Railroad. From a judgment in favor of plaintiff, defendant appeals.

Affirmed.

For the appellant there was a brief by R. H. Nichols and S. J. Lewis both of Casper, Wyoming, and Joseph Garst, of Douglas Wyoming, and oral argument by Mr. Garst and Mr. Nichols.

The burden of proof was upon plaintiff to show the crossings were public crossings, at which cattle guards were required by law. 52 C. J. 113; Lexington & E. Ry. Co. v. Russell, 197 S.W. 523; Knight v. Ry. Co., 172 P. 689. There is a variance between the allegations and proof; the petition alleges that defendant did construct sufficient fence, but failed to maintain it. A gate is a part of a fence. Rucker v. Lusk, 221 S.W. 393; Mackie v. Ry. Co., 6 N.W. 723; Payne v. Ry. Co., 33 N.W. 633; Fremont Ry. Co. v. Pounder, 54 N.W. 509. The effect of the allegation is that defendant constructed sufficient gates, but failed to keep them in repair; the burden was upon plaintiff to prove the insufficiency of the fences. 52 C. J. 114; Midland Valley Co. v. Bryant, 131 P. 678. Where testimony is silent as to condition of the gates, no negligence may be imputed to defendant, nor imputation that the gate was not in good repair. Dodge Bros. v. Vermont, 104 A. 873. The statute does not require cattle guards at gates of the class referred to in the first cause of action. The authorities recognize three rules. Missouri, Maine, Florida, Illinois and Iowa hold that gates are a part of railroad fences to be maintained by railroads. Indiana, Massachusetts, Kansas, Ohio, New York, Texas, Minnesota, Mississippi and other states hold that gates installed for convenience of individuals at private crossings must be kept closed by persons for whose convenience they were built. It is the duty of such persons to keep them closed. A third rule is governed by statute in Montana and Idaho, and has no application here. In the absence of statute, railroad companies are not charged with notice or knowledge of private gates left open by strangers, but are obligated to close them when found open. Swanson v. Ry. Co., 49 L. R. A. 625, 1 R. C. L. 1185, 52 C. J. 57, 58 and cases cited. Henderson v. C. R. I. & P. Co., 43 Iowa 620; Swanson v. Ry. Co., supra. Railroads are not required to guard private gates, or to supply watchmen to see that they are kept closed. International & G. N. R. Co. v. Russell, 106 S.W. 438. As to plaintiff's second cause of action, no evidence was introduced to show that the fence was not in first class condition, or that want of repair was the proximate cause of the alleged damage. 52 C. J. 114; Dodge Bros. v. Central Vt. Ry. Co., supra; Johnson v. Rwy. Co., 8 N.W. 664; Coronett v. Rwy. Co., 171 S.W. 15; St. Louis Ry. Co. v. Adams, 58 S.W. 1035. The condition of the fence at the point of entry governs. 52 C. J. 34. The railroad company is only required to use reasonable care and diligence with respect to fences. Coe v. No. P. R. Co., 11 L. R. A. (N. S.) 228; Co. v. Snavely, 23 Wyo. 324, 52 C. J. 51. The railroad company is not liable for injuries to animals due to defects in a lawful fence, occurring after its construction, unless it had actual knowledge of such defect and an opportunity to repair it. Ind. R. Co. v. Hall, 88 Ill. 368; Davis v. Chic. R. Co., 40 Iowa 292; Young v. Hannibal R. Co., 82 Mo. 427; Hodge v. N.Y. Central, 27 Hunn. (N. Y.) 394; Elliott on Railroads, Vol. 3, p. 632; Kavanaugh v. Ry. Co., 63 S.W. 374. Plaintiff and witnesses testified as to their knowledge of defects in the fence for a month or more, but failed to give defendants notice. 1 R. C. L. 1181; Elliott on Railroads, Vol. 3, 632. Plaintiffs were guilty of contributory negligence. Carey v. Rwy. Co., 20 N.W. 648. The court erred in refusing to direct a verdict in favor of defendant, and the verdict entered is contrary to law.

For the respondent there was a brief by Dawson & Daniels, of Douglas, Wyoming, and oral argument by John D. Dawson.

The statute requires railroads to construct right of way fences of a specified character. Failure to do so creates a presumption of negligence. Wyo. N.W. Ry. Co. v. Snavely, 23 Wyo. 324. Defendant's employees were notified of the defects in the fences long prior to the accident. The fence was lying on the ground at the time the cattle entered. There was no cattle guard there. Proof introduced by defendant was that the gates were company property. Defendant failed to offer evidence to overcome the presumption of negligence. The evidence offered by defendant with respect to the entry of the cattle was contradicted and the issues were for the jury. The judgment should be affirmed.

BLUME, Justice. KIMBALL, Ch. J. , and RINER, J., concur.

OPINION

BLUME, Justice.

This is an action brought by the plaintiff Hildebrand against the defendant railroad company to recover damages on account of cattle killed on the right of way of the defendant. The case was tried to a jury who brought in a verdict for the plaintiff. Judgment was entered thereon; and the defendant has appealed. The contention is that the verdict and judgment are contrary to law and the evidence.

The petition alleges that the defendant duly fenced its right of way, but that it failed in its duty to keep it in proper repair, and that by reason thereof, plaintiff's cattle strayed upon defendant's right of way and were killed by a train. The statutes applicable herein are Sections 96-116 and 96-117, R. S. Wyo. 1931, which provide as follows:

Sec. 96-116: "All railway corporations, owning or operating a line of railway within the state, shall construct, maintain and keep in repair on each side of the track thereof, a sufficient fence, so connected with suitable cattle guards at all public road crossings as to prevent stock from getting on the railroad track of said corporation, and such fence, when of barb wire, to consist of four wires securely fastened to posts set not more than thirty-two feet apart, with stays not more than ten feet apart." * * *

Sec. 96-117: "Any corporation operating a railway and failing to fence the same and to construct and maintain suitable cattle guards as required by the preceding section, shall be liable to the owner or owners of any live stock killed or injured by reason of its failure to construct or keep in repair such fence or cattle guard in the manner provided in the preceding section, for the full amount of the damage sustained by the owner on account thereof and to make a prima facie case for recovery, it shall only be necessary for such owner to prove the loss or injury to his property; provided, that no corporation operating a railroad shall be liable for any damage occasioned by the wilful act of the owner or of his agent or employees or for stock killed or injured on public road crossings unless negligence on the part of such corporation, its agents, servants or employees can be shown."

It is admitted that the cattle of plaintiff here in question were killed by one of defendant's trains on its right of way.

1. The petition of plaintiff contains three causes of action. The third, which we shall consider first, is for killing two cows on December 13, 1930. It is admitted that the cows strayed on to the railroad right of way at a place where the fence was down. Defendant sought to show that this was caused by a plank which the plaintiff placed, or caused to lean, on the fence. This, however, was denied by the plaintiff, and the conflict in the evidence was by the jury resolved in plaintiff's favor, and we are unable to say that they were not warranted in doing so. It was further disclosed by the testimony that the plaintiff knew of the condition of the fence for some days prior to the time that the cattle in question were killed, and it is accordingly contended that he should have notified the defendant, and that his failure to do so makes him guilty of contributory negligence which bars his recovery herein. The testimony of defendant's section foreman, however, discloses that it was his constant duty to look after the fence. Hence he doubtless knew of its condition and notice by plaintiff could not have added to the knowledge which he already, presumably, had. Under these facts we cannot hold that the plaintiff's right of recovery is barred by contributory negligence. The judgment as to the third cause of action must, accordingly, be affirmed.

2. The first cause of action was for killing two cows in August, 1929. The defendant's section foreman testified that he found these cattle, when killed, near a gate; that he traced the tracks of the cattle, and that they showed that the cattle entered the defendant's right of way through this gate; that this gate was in good condition that he closed it the night before the cattle were killed, and that he found it open the next morning. It is defendant's contention that this testimony discloses that defendant was in the exercise of due care, and hence must be absolved from all responsibility for killing the cattle. Without considering other points in this connection, however, the testimony further discloses that the gate in question was about two miles distant from defendant's land, on which the cattle had been grazing, and plaintiff testified that his land, at the time in question, was fenced on all sides, sufficient to keep the cattle within its bounds, except the fence along the defendant's right of way, bordering on his land, which was down, and covered with dirt, and that the cattle entered defendant's right of way at this place. This testimony was in direct...