Kansas City, M. & B.R. Co. v. Spencer

• Decision Date: 28 January 1895
• Citation: 72 Miss. 491,17 So. 168
• Parties: KANSAS CITY, MEMPHIS & BIRMINGHAM RAILROAD CO. v. J. J. SPENCER ET AL
• Court: Mississippi Supreme Court

17 So. 168

72 Miss. 491

KANSAS CITY, MEMPHIS & BIRMINGHAM RAILROAD CO. v. J. J. SPENCER ET AL

Supreme Court of Mississippi

January 28, 1895

FROM the circuit court of Benton county, HON. EUGENE JOHNSON Judge.

Action begun May 6, 1893, by J. J. Spencer and wife against the Kansas City, Memphis & Birmingham Railroad Company, to recover of defendant the statutory penalty for failure to construct and maintain certain cattle guards and a crossing for a plantation road.

Plaintiffs owned a tract of land, on which their residence was situated adjoining the railroad on the north side. They did not own any land south of the railroad, but had been in possession of a tract on that side, of about thirty acres, as tenants at will, since January, 1892. This land extends to the railroad right of way, and is immediately opposite the land of plaintiffs. The land was bounded on the east by a public road which crosses the railroad. That owned by plaintiffs, and that occupied by them on the south of the railroad, is inclosed, and there is a fence along the south side of the railroad right of way. The land south of the railroad is used as a pasture. The road bed is about on a level with the surface of the ground. A small creek or branch crosses the public road just north of the railroad, and runs in a southwesterly direction across the railroad and through the land occupied by plaintiffs south of the right of way. The declaration contains three counts. In the first count plaintiffs claim $ 250 statutory penalty for failure to maintain a suitable crossing inside of the inclosure for a necessary plantation road. In the second count they claim $ 250 statutory penalty for failure of defendant to construct and maintain a stock gap, or cattle guard, of sufficient length on the right of way, where the fence crosses the track at the east side of plaintiffs' land. In the third count plaintiffs demand $ 100 actual damages alleged to have been sustained by the trespassing of cattle in consequence of the failure of defendant to construct and maintain a proper cattle guard.

Defendant pleaded the general issue and several special pleas, upon which issue was joined. It was averred, in the second special plea, that there was a public crossing just east of plaintiffs' land, and a private crossing about one-quarter of a mile west of the public road, on the land of one Gibson; that there was no plantation road in plaintiffs' inclosure, and that there was no necessity for such a road or crossing; that the land south of the road was only used as a pasture, and that stock could easily pass over the track at any point. In the third plea defendant alleged that it had constructed all necessary and proper stock gaps and cattle guards where its railroad passes through plaintiffs' inclosure. In the fourth plea defendant averred that the damages sustained by plaintiffs if any, resulted from their failure to erect proper fences and not from the failure of defendant to maintain proper cattle guards.

On the trial plaintiffs introduced testimony tending to show that several years previously there was a crossing over the railroad for a necessary plantation road at the point where it was demanded a crossing should be made, and that there were signs of an old road going from the residence to this point. Plaintiffs' testimony also tended to show that the cattle guards were out of repair just before the trial, and that there was a ditch, on the north side of the railroad right of way, some two feet wide and two feet deep. It was shown that the cattle guards are constructed as follows: A pit is dug in the embankment, at each end of Which is placed a sill, and on top of this are stringers, upon which are laid, close together, cross-ties with sharp, beveled edges and upon these the iron track is laid. A panel eight feet in length is attached to each side of the cattle guard, this panel slopes up to a height of five feet, and there is what is called a wing attached, to prevent stock from passing over the same. The testimony showed that on the north side of the railroad, at the east cattle guard, the fence of plaintiffs, while extending to the right of way, lacked some distance of connecting with the panel attached to the cattle guard. It appeared that plaintiff, J. J. Spencer, first asked for a water gate to connect his fence to the cattle guard at this point.

The testimony further showed that the only use plaintiffs had for a crossing, except for pasturing stock, was to haul rails to repair the fences on the land south of the railroad; that they could enter this land at any point on the public road, but to get to that part of the same north and west of the creek it would be necessary to make a bridge over the creek.

Defendant introduced witnesses, who testified that they had large experience in railroad building, and that the cattle guards in question were properly constructed and were in first-class condition; that they were constructed as is usual on defendant's railroad and on other railroads; and that it was usual for farmers to attach their fences to the cattle guards thus constructed. Defendant also offered testimony to the effect that plaintiffs made no complaint about the cattle guards, but wanted the railroad company to put in a water gate between his fence and the cattle guard on the north of the railroad.

After the testimony was closed, plaintiffs asked the court to grant a peremptory instruction, directing the jury to find in their favor for the sum of $ 250 for the failure to make and maintain proper cattle guards. This was refused. Plaintiffs then asked an instruction authorizing the jury, if it believed the defendant had failed to maintain such cattle guards as would reasonably turn stock, to find in their favor in the sum of $ 250 for each failure. This instruction the court so modified as to restrict the jury to a verdict of $ 250 on all the counts, even if the defendant had failed in maintaining both cattle guards and the road crossing. At the instance of plaintiffs, the court was requested to instruct the jury that the defendant was required to maintain cattle guards on either side of plaintiffs' inclosure where the railroad crosses, and that such cattle guards should be so constructed as to reasonably prevent stock from entering plaintiffs' land through or over them; and that if the defendant had failed to maintain such cattle guard, the jury should find for the plaintiffs, for any such failure, in the sum of $ 250. The court gave this instruction, after adding to it that the jury could only find for plaintiffs, on all the counts, one penalty of $ 250.

The court refused a peremptory instruction asked by defendant. It granted an instruction that defendant was only required to erect such cattle guards as are usually constructed on the defendant's road, and on other railroads in Mississippi. It also instructed for the defendant, that if plaintiffs had convenient access to their land over the public crossing, and that there was no necessity for the plantation road, plaintiffs were not entitled to recover.

The jury found for plaintiffs in the sum of $ 250 for failure to construct the road crossing, and judgment was entered accordingly. Defendant's motion for a new trial was overruled, whereupon it excepted, and embodied all the evidence in a bill of exceptions. Plaintiffs also made a motion for a new trial, averring that the court had erred in the instructions and in excluding evidence as to damages sustained by the trespass of stock going upon their land through the defective cattle guards; and in admitting evidence by defendant's witnesses as to the usual manner of constructing cattle guards. Defendant appealed, and plaintiffs prosecuted a cross appeal.

Section 3561, code 1892, under which the suit was brought, is as follows: "It is the duty of every railroad company to construct and maintain all necessary or proper stock gaps and cattle guards where its track passes through inclosed land; and to make and maintain convenient and suitable crossings over its track for necessary plantation roads. For any failure so to do the railroad company shall be liable to pay $ 250, to be recovered by the person interested.

By an act approved March 13, 1884 (Laws, p. 42), railroad companies were required to construct and maintain sufficient cattle guards in passing through inclosed land, and to make and keep in repair crossings for necessary plantation roads. This was the first legislation in the state on the subject. The act continued in force until the code of 1892 went into effect. Appellant was chartered February 11, 1886.

The opinion contains a further statement of the case.

Judgment affirmed on direct appeal, reversed on cross appeal and cause remanded.

Wallace Pratt and Buchanan & Minor, for appellant.

1. The proof wholly fails to show that there was a necessary plantation road for which a crossing should be constructed. Plaintiffs did not own the land south of the road, but merely occupied it as tenants at will, and used it only for pasturage. The land was accessible from the public road on which defendant maintained a crossing. By putting a bridge over the small stream plaintiffs could go from the public road to any part of this land. Besides all this, the testimony shows that there was a crossing on the land of Gibson, only a short distance west of the public road. The statute in question, § 3561, code 1892, is highly penal and will be strictly construed. In addition to the expense of maintaining these crossings, it is to be remembered that they add much to the danger of operating the railroad. Here the track was nearly on a level, and there was no difficulty about crossing it, at any point, in order to reach the pasture. Taking into consideration all...