International & G. N. R. Co. v. Richmond

• Decision Date: 26 March 1902
• Citation: 67 S.W. 1029
• Parties: INTERNATIONAL & G. N. R. CO. v. RICHMOND.
• Court: Texas Court of Appeals

67 S.W. 1029

INTERNATIONAL & G. N. R. CO. v. RICHMOND.

Court of Civil Appeals of Texas.

March 26, 1902.

Appeal from Hays county court; Ed. R. Kone, Judge.

Action by Thomas Richmond against the International & Great Northern Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

G. W. Allen, for appellant. Will G. Barber, for appellee.

FISHER, C. J.

This suit was brought by appellee to recover of appellant the value of one horse alleged to have been killed by the appellant's cars and locomotives, and for damages to one mule alleged to have been injured at the same time and in the same manner; appellee charging that appellant was a railroad corporation operating a line of railroad at the point where the said stock were injured, and that said injury was caused by the negligence of defendant and its employés in operating its said cars and engines, and in failing to keep in reasonable repair a fence along its right of way. Suit was instituted in the justice court, and appellee recovered a judgment. Appellant appealed to the county court, and appellee there obtained judgment for the sum of $185,—the entire amount sued for,—from which judgment appellant brings the case to this court for review.

The animal killed and the one injured were the property of appellee. The animals, when in the possession of a tenant of appellee, who had stopped for the night with his uncle, who was a tenant upon the farm of Mr. Tom Johnson, were placed in the stable that belonged to the Johnson farm. Around the stable was a lot fence, which had a gate opening into a field owned by Mr. Johnson. After the animals were placed in the stable for the night, the stable door and the gate that led into the field were closed. Some time during the night the animals escaped from the stable and lot, and entered Johnson's field through the gate, and went across the field to an opening in the appellant's right of way fence, which separated the right of way from Johnson's field; the latter adjoining the right of way on the west. The animals went through this opening in the right of way fence onto the track, where the horse was killed and the mule injured by one of appellant's trains. Johnson did not own the land east of the track. Along the right of way fence upon the east side was a public road. The opening in the fence that separates the right of way from Johnson's inclosure was put there for the convenience of the latter, so as to leave him a convenient way to the public road on the east side of the track. This opening and way was not one of necessity, as there were accessible to Johnson and his tenants other convenient ways open to the public road. There was no gate or bars to the opening in the right of way fence through which the animals escaped, nor had the opening been closed for some time. The evidence does not show that appellee ever used the opening in the right of way fence in Johnson's field, or that he had any control of the same; nor does it appear that he was a party to the arrangement between the railway company and Johnson, by reason of which the opening was made for the convenience of the latter.

Article 4528, Sayles' Ann. Civ. St., makes every railroad company liable to the owner for the value of stock killed or injured by its locomotives or cars in running over their respective railways. And if the railroad company fence its road, it shall only be liable in case of injury resulting from want of ordinary care. It is not pretended that appellant is liable by reason of any want of ordinary care, as provided for in the latter part of that article of the statute. Articles 4427 to 4434 provide for what are termed "neighborhood crossings," and articles 4434 and 4435 provide for crossings of public roads and streets. The crossings over the tracks and openings in the right of way fence provided for in the preceding articles, 4427 to 4435, inclusive, except the openings provided for in the concluding part of article 4427, are for the benefit of the public; and it is clear, from the facts as stated, that the opening in appellant's fence in question does not fall within that class, for it was made solely for the use of Johnson, the owner of the field bounding the track on the west, and the public have no interest in it. The concluding part of article 4427 provides that, if the right of way fence divides any inclosure, at least one opening shall be made. And this has been construed to mean that such opening is solely for the benefit of the owner of the inclosure, so as to admit access and passage to and from those parts of the inclosure divided by the right of way fence. Railway Co. v. Hanacek (Tex. Sup.) 55 S. W. 1117. The opening in question does not fall within the above class, because Johnson's inclosure only extended to the right of way fence west of the track, and he did not own east of it. The opening was not made in order to admit passage from one part of an inclosure to another part. There was no inclosure divided by the right of way fence. We have cited all the provisions of the statute relating to this subject, and by none is the opening in question, placed in the right of way fence for the convenience of Johnson, authorized; nor can it be allowed on the ground that it was a way of necessity, because the facts show that he was not entitled to the opening for any such purpose. There existed other convenient ways in use, open to the public road. This state of facts presents the question whether the railway company can be excused from liability to the public, and persons other than the owner of the premises for whose benefit the opening is made, when it leaves openings in its right of way fence where such openings are not provided for or authorized by law, or the owner is not entitled to same as a way of necessity.

Article 4528 creates liability for all stock killed or injured when the road is not fenced. And when such is the case, liability for value of stock killed becomes absolute, although it might be made to appear that a fence at that particular place would not have excluded the animals from the track, or that by reason of the circumstances a fence would not have prevented the injury. Railway Co. v. Hudson, 77 Tex. 497, 14 S. W. 158. The question was directly passed upon in the case cited, and was, in effect, also so decided in Railway Co. v. Childress, 64 Tex. 347, and Railroad Co. v. Cocke, 64 Tex. 153. A debarment, within the meaning of the statute, is a fence which is reasonably sufficient to prevent live stock from going upon the track. 16 Am. & Eng. Enc. Law (2d Ed.) 485; 12 Am. & Eng. Enc. Law (2d Ed.) 1081. And the duty rests upon the railway company to exercise reasonable diligence or ordinary care to maintain it in that condition. 16 Am. & Eng. Enc. Law (2d Ed.) 493; Railway Co. v. Cash (Tex. Civ. App.) 28 S. W. 387. The statute imposing liability for failure to fence does not apply to places where public necessity and convenience require they should be left unfenced (Railroad Co. v. Cocke, 64 Tex. 154), or at places where the articles of the statute previously mentioned excuse the railway from fencing; but, as to all other places, it is clear that liability exists if the fence is not erected, and proper diligence used to maintain it in condition to exclude stock from the track. When openings are left in the right of way fence where the railway is not required to leave them, or, in other words, where they are not authorized by law, the fence is not complete; and it would be no defense that this condition was attributable to an arrangement with an adjoining owner, so far as the rights of the public or third parties may be affected by the failure to fence at that particular place. Statutes such as ours, creating liability to the owner of stock killed or injured when the track is not fenced, are held to imply the duty to fence; and the purpose of such a law is not merely for the benefit of the adjoining landowner, but is generally for the protection of live stock, and the more important purpose of promoting the security of persons and property passing over the railroads. 12 Am. & Eng. Enc. Law (2d Ed.) 1066. In Railway Co. v. Childress, 64 Tex. 346, it was held that the object of the statute was to compel railway companies to fence their tracks for the purpose of preventing damage to live stock, and the still more important purpose of protecting the traveling public. This ruling was approved in Railway Co. v. Rowland, 70 Tex. 303, 7 S. W. 718, and Railway Co. v. Bender, 87 Tex. 100, 26 S. W. 1047. This is the purpose and object that is generally given to these statues, and prevails in the supreme court of the United States, and, we believe, in every state within the Union, so far as our investigation has extended, with the exception of two. The following authorities, with many others that could be cited, maintain this view: Hayes v. Railway Co., 111 U. S. 235, 4 Sup. Ct. 369, 28 L. Ed. 410; Railway Co. v. Johnson, 59 Ind. 190; Railway Co. v. Roads, 33 Kan. 641, 7 Pac. 213; Gillam v. Railway Co., 26 Minn. 269, 3 N. W. 353; Dickson v. Railway Co., 124 Mo. 140, 27 S. W. 476, 25 L. R. A. 320, 46 Am. St. Rep. 433; Blair v. Railway Co., 20 Wis. 254; Fordyce v. Jackson, 56 Ark. 597, 20 S. W. 528, 597; Keyser v. Railway Co., 56 Mich. 559, 23 N. W. 311, 56 Am. Rep. 405; Stuettgen v. Railway Co., 80 Wis. 498, 50 N. W. 407; Isabel v. Railway Co., 60 Mo. 484; Railway Co. v. Grablin, 38 Neb. 90, 56 N. W. 796, 57 N. W. 522; Donnegan v. Erhardt, 119 N. Y. 472, 23 N. E. 1051, 7 L. R. A. 527; Sullivan v. Navigation Co., 19 Or. 323, 24 Pac. 408; Welsh v. Railway Co., 53 Iowa, 634, 6 N. W. 13; Railway Co. v. Beckwith, 129 U. S. 26, 9 Sup. Ct. 207, 32 L. Ed. 585; Norris v. Railway Co., 63 Am. Dec. 623; Gillman v. Railway Co., 60 Me. 244.

In Sullivan v. Railway Co., the supreme court of Oregon, and in Welsh v. Railway Co., the supreme court of Iowa, and in Railway Co. v. Beckwith, the supreme court of the...