Hildebrand v. Chicago B. & Q. R. R, 1744

• Citation: 17 P.2d 651,45 Wyo. 175
• Decision Date: 04 January 1933
• Docket Number: 1744
• Parties: HILDEBRAND v. CHICAGO B. & Q. R. R
• Court: United States State Supreme Court of Wyoming

17 P.2d 651

45 Wyo. 175

HILDEBRAND v. CHICAGO B. & Q. R. R

No. 1744

Supreme Court of Wyoming

January 4, 1933

ERROR to District Court, Niobrara County; C. O. BROWN, Judge.

ON REHEARING.

Former opinion modified, but conclusion is affirmed, and judgment below affirmed.

For former opinion, see 13 P.2d 1081.

Affirmed.

For the appellant the cause was argued orally on rehearing by R. H Nichols, of Casper, Wyoming, and Joseph Garst, of Douglas Wyoming.

The ground urged in support of the motion are alleged errors: (1) the courts finding of a conflict in evidence resolved in plaintiff's favor in cause of action numbered one; (2) the court's holding that the burden of proof, as to lack of negligence was on defendant, in view of the admission that the cattle were killed by one of defendant's trains; said holdings were plain conflicts with the decision in Wyoming N.W. Ry. Co. v. Snavely, 23 Wyo. 324; (3) applications of rules of law of which defendant was relieved by admissions in causes of action numbered 1 and 2 of plaintiff's pleading. As to the first proposition, there was an erroneous interpretation of the evidence as to the point where the cattle entered. One point of entry having been proven or admitted, inconsistent testimony relating to defects in rail fences at some other point was inadmissible. Tisthammer v. U. P. R. R. Co., 41 Wyo. 382. Second the burden of proof rested upon the party who had the affirmative as shown by the pleadings. 22 C. J. 14, pp. 68, 69; also 22 C. J. 21, p. 76. Plaintiff's petition expressly alleged that defendant did construct a sufficient fence, but permitted it to deteriorate into a state of ill repair. This allegation should place the burden upon plaintiff to prove such negligence. The statute, 96-116 and 96-117 R. S. 1931, referred to in Wyoming N.W. Rwy. Co. v. Snavely, 23 Wyo. 324, did not expressly change the rule shifting the burden of proof. 52 C. J. 114; First Natl. Bank v. Ford, 30 Wyo. 110. Only reasonable care and diligence in maintaining fences properly constructed is required. 52 C. J. 51, 1510; Coe v. No. P. R. Co., 11 L. R. A. (N. S.) 228 and cases cited. 1 R. C. L. 1181. Plaintiff failed to sustain the burden of proof obligatory upon him. 8 A. L. R. 823. The court erred in stating rules of law without qualification established by other rules of law having application to the case at bar. 1 R. C. L. 1181, 52 C. J. 114. The cases reported in the Southwestern Reporter and cited by the court as affecting its construction of Section 38-236, W. R. S. 1931, coupled with two rules cited by the court from 52 C. J. 59, holding as we understand them, that a primary duty is imposed upon the railroad company to keep gates of the kind here involved closed, is subject to recognized qualifications. The Idaho statute imposes upon railroad companies the duty of keeping gates closed and the holding in Saccononno v. Great Northern R. Co., 166 P. 267, wherein the severity of the statute is criticised, should not apply in Wyoming, and is in conflict with the following authorities: Bishop & M. Rd. v. Daniel, 290 F. 916; Atlantic Coast Line R. Co. v. Bunn, 58 S.E. 538; Moragne v. Ry. Co., 58 S.E. 158. The matter seems to be clearly stated by statute in this state. 52-201 W. R. S. 1931, restricts such reference to "public road crossings" not "public crossings."

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

The entire argument of counsel for plaintiff appears to be based upon erroneous premises. The main assumption seems to be that the presumption of negligence on the part of defendant Railway Company when cattle are proven to have been killed upon their right-of-way, fails, when any direct evidence is offered by defendant, inconsistent with its liability. This applies in causes of action numbered (1) and (2), there being no contention against the court's decision on cause of action numbered three. A presumption is evidence and may outweigh positive evidence introduced against it. Smellie v. So. P. Rwy. Co., 299 P. 532 and cases cited. Against a proved fact, or a fact admitted, a disputable presumption, it still remains with the jury to say, whether the fact has been proved, and if they are not satisfied, they are at liberty to accept the evidence of the presumption. People v. Milner, 54 P. 833; Sarraille v. Calmon, (Calif.) 76 P. 497; People v. Siemsen, (Calif.) 95 P. 863; Pabst v. Shearer, (Calif.) 156 P. 466; Thompson v. Davis, (Calif.) 157 P. 595; Olsen v. Standard Oil Co., (Calif.) 204 P. 393; P. Portland Co. v. Reinecke, (Calif.) 158 P. 1041; Bushnell v. Yoshika Tashiro, (Cal.) 2 P.2d 531; Kromer v. Brokerage Co., (Okla.) 220 P. 338; Millar v. Semeler, (Ore.) 3 P.2d 987. Railway companies must fence livestock from their tracks. The statute provides the kind of fence and gates that must be built. Defendant seeks a meaningless interpretation of the statute and they must keep the fence in repair. When the fence has been built and cattle are killed on the right of way, the presumption that proper care has not been exercised in the maintenance of the fence, is imposed on the defendant. The burden of proving affirmative defenses often results in a shifting from one party to another. In this case the presumption of negligence was a part of the evidence properly considered by the jury. The decision in this case is consistent with former decisions of this character in R. R. v. Snavely, 23 Wyo. 324 and Tisthammer v. U. P. Rwy. Co., 41 Wyo. 382.

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

OPINION

BLUME, Justice.

This is an action instituted by the plaintiff Hildebrand against the defendant railroad company to recover damages for cattle killed on the latter's right of way. The petition was in three counts, claiming damages for cattle killed in August, 1929, in August, 1930, and in December, 1930. Judgment was in favor of the plaintiff, and that judgment was affirmed in this court. 13 P.2d 1081. A rehearing was granted as to the first and second causes of action; that is to say, for the causes of action arising in August, 1929 and in August, 1930, and the case has been re-argued orally and ably, the points urged being mentioned hereafter. The situation, as to both causes of action are similar, and both can be decided upon the same grounds, without mentioning the special ground on which the first cause of action was decided in the original opinion, and to make the situation clear, the essential facts, not all heretofore set out, will be stated here.

It is admitted that the cattle in question were killed on defendant's tracks by its trains, and that this was at a farm where the railroad company was required to fence, or at least the case was tried on that theory. There is testimony indicating that those killed in August, 1929, entered the right of way through an open gate at a place about two miles west of plaintiff's land. The right of way at that place was under the supervision of defendant's section foreman Reas. The nature of the gate and crossing is not shown. Reas testified that he closed the gate on the evening before the cattle were killed; that he often found the gate open, in fact nearly every morning. The cattle killed in August, 1930, entered the right of way through a gate and crossing situated just east of plaintiff's land, the crossing leading to a tank farm. The right of way along that place was under the supervision of defendant's section foreman Day. He testified that he closed the gate the evening before the cattle were killed; that it was in good condition; that it was open practically all the time; that he would close it every time that he saw it open, sometimes three or four times a day. This crossing was apparently constructed mainly for the benefit of the people going to and from the tank farm. Seemingly both of the crossings in question were private, neither being provided with cattle guards, but there is nothing in the record to indicate that they are "farm crossings" contemplated by Section 38-236, Rev. St. 1931, or that they were otherwise required or permitted by statute; in fact the record indicates the contrary in connection with the crossing east of plaintiff's land.

1. The first point urged herein is that we erred in stating in the original opinion that "the burden of proving want of negligence" was on the railroad company. The statement does not refer to the burden of proof in the case as a whole, but merely to the burden of the evidence at a particular stage of the case. It was made in view of the provision of Section 96-117, Rev. St. 1931, that a plaintiff in a case of this character makes out a prima facie case for recovery by proving the loss or injury of his property, and in view of the admission that the cattle in question were killed on defendant's right of way by its trains, and the evidence as to the ownership of the property and the value thereof. We have been favored, both orally and in the briefs, with an analytical discussion as to the difference between burden of proof and burden of the evidence, and our attention is called to a lengthy consideration of that subject in the case of First National Bank v. Ford, 30 Wyo. 110, 216 P. 691, 31 A. L. R. 1441. Our statement in the original opinion, and above mentioned, accords with that made in Elliott on Railroads (3rd Ed.) Sec. 1729, where the author says:

"Thus statutes are in force which make the mere proof of the killing of or injury to an animal by the cars or locomotives of a railway company sufficient to raise a presumption of negligence against it. As soon as this presumption arises the plaintiff has made out a prima facie case and will recover unless the defendant introduces evidence to show that it exercised...