Hunt v. White Sulphur Springs & Y.P. Ry. Co.
| Decision Date | 10 June 1922 |
| Docket Number | 4799. |
| Parties | HUNT v. WHITE SULPHUR SPRINGS & Y. P. RY. CO. |
| Court | Montana Supreme Court |
Commissioners' Opinion.
Appeal from District Court, Meagher County; E. H. Goodman, Judge.
Action by Mark Hunt against the White Sulphur Springs & Yellowstone Park Railway Company. Judgment for plaintiff, and defendant appeals from the judgment and from the order denying a new trial. Reversed and remanded, with directions to dismiss.
Gunn Rasch & Hall, of Helena, for appellant.
C. A Linn, of White Sulphur Springs, for respondent.
Plaintiff brings this action against defendant railway company alleging that certain cattle guards on the defendant's railway about 2 1/2 miles south of White Sulphur Springs, Meagher county, Mont., were not built and maintained in a manner sufficient to prevent cattle and horses from crossing over them, but were negligently allowed and permitted by the defendant to be and remain in such a condition that cattle and horses could freely pass across and over the said cattle guards at will, and wander in and upon the right of way of the defendant; that on the 31st day of December, 1917, a gelding owned by the plaintiff, of the value of $175, lawfully running at large, without any fault of the plaintiff, strayed across one of the defendant's cattle guards and in and upon the defendant's railroad track and right of way, and, being frightened either by the approach of the train or for some other cause, ran down the railroad track in a southerly direction and upon the railroad bridge, breaking one leg, necessitating the killing of the animal; that the injury to the said gelding was caused by the negligence of the defendant in failing to maintain cattle guards sufficient to prevent the plaintiff's gelding from entering said right of way; that at the time the injury was sustained the defendant had failed to designate some station on its line in said Meagher county at which it would keep a suitable book "for entering the date when and the place where and the description of the stock killed or injured," or to file in the office of the county clerk and recorder of said county any notice of the station so designated as provided in section 4311, Rev. Codes of 1907, now section 6542, R. C. M. 1921.
The answer of the defendant admits the maintenance of cattle guards at the points on its line mentioned by the plaintiff, and that during the month of December, 1917, a gelding got on a bridge on the right of way of the defendant and was injured. Defendant denies the other allegations of the complaint, and denies any liability.
The evidence offered shows that the animal was found on the right of way of the defendant near the bridge, with a broken leg; some blood and hair were found on the bridge; but the evidence does not disclose how the gelding got on the right of way, whether through the fence or gates, which were open, or over the cattle guards. Defendant moved for a nonsuit at the close of plaintiff's case, which was denied. The case was submitted to the jury, who found for the plaintiff for the value of the gelding; and from the judgment and order refusing a new trial defendant appeals.
Several errors are assigned, but we will consider only the sufficiency of the complaint and the evidence to sustain the verdict. The defendant's contention is that it does not appear from either the evidence or the complaint that the gelding was injured by the engine or cars of the defendant, and that, in the absence of such a showing, there is no liability upon the defendant in this case. This is one of the questions presented upon this appeal.
Under the common law, there is no obligation or duty on the part of the defendant to fence its railroad track so as to prevent animals or live stock from entering thereon. Alexander v. G. N. Ry. Co., 51 Mont. 565, 154 P. 914, L. R. A. 1918E, 852. If animals escape from the owners' premises, and find their way onto the right of way of a railroad company, and are injured, the railway company is not liable at common law, unless the injuries inflicted on the animals are the result of wantonness or willfulness on the part of the railway employees, although the common-law rule has been modified in some jurisdictions so as to make a railway company liable for injuries negligently inflicted upon live stock upon its right of way. Elliott on Railroads, § 1180; Seaboard Air Line Ry. Co. v. Coxetter (Fla.) 90 So. 469. Hence there is no liability on the part of the defendant in this case for failure to maintain a proper fence or cattle guards resulting in injury to plaintiff's gelding, unless the injury resulted from the negligent acts of the defendant's employees, or unless the liability is created by the statute. 33 Cyc. 1170-1213; Todd v. Pacific Ry. & Navigation Co., 59 Or. 249, 110 P. 391, 117 P. 300; McCook v. Bryan, 4 Okl. 488, 46 P. 506.
The complaint does not allege any negligence except failure to maintain the cattle guards as required by the statute, and the plaintiff is limited to the particular act of negligence charged. So in this case the plaintiff cannot recover except upon the alleged negligence of the company in failing to maintain cattle guards as required by section 4308, Rev. Codes 1907, now section 6540, R. C. M. 1921. Flaherty v. Butte Elec. Ry. Co., 40 Mont. 454, 107 P. 416, 135 Am. St. Rep. 630.
The evidence does not show any negligent acts by defendant, causing the injury. It does not show that the animal was struck by the engine or cars of the defendant; neither does it show the defendant negligently frightened the animal, causing it to run upon the bridge. The fact that the animal was found on the right of way with a broken leg is not proof that it was maimed or injured by the engine or cars of the defendant (Beaudin v. Oregon Short Line R. R. Co., 31 Mont. 238, 78 P. 303), and, of course no proof that its injury was caused by the negligence of the defendant. Plaintiff relies upon the case of Alexander v. Great Northern Ry. Co., supra, in support of his position that the duty to fence exists independently of the statute, because of the common-law obligation to exercise ordinary care. However, this case goes no farther than to hold that the railroad owes a duty to its employees to exercise ordinary care to provide them with a safe place in which to work. In this case a conductor was killed "as the result of a derailment of his caboose consequent upon a collision of his train with a cow." The negligence charged was the failure of the company to fence its track at and near the place of the accident, and thus exclude cattle, the presence of which upon the track was likely to cause derailment of trains.
The theory of the court in deciding this case is shown by the following statement in the opinion by Mr. Justice Sanner:
"Under such conditions the failure to fence so as to keep out cattle, the consequent straying of the cow upon the track, the consequent running over the cow while on the track, and the consequent derailment of decedent's train, resulting in his death, form a collection of facts which plainly constitute evidence of negligence, making a question for the determination of the...
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