Kansas City Southern Railway Co. v. Crossen

• Decision Date: 29 April 1912
• Citation: 147 S.W. 48,103 Ark. 613
• Parties: KANSAS CITY SOUTHERN RAILWAY COMPANY v. CROSSEN
• Court: Arkansas Supreme Court

147 S.W. 48

103 Ark. 613

KANSAS CITY SOUTHERN RAILWAY COMPANY v. CROSSEN

Supreme Court of Arkansas

April 29, 1912

Appeal from Sevier Circuit Court; Jefferson T. Cowling, Judge affirmed.

STATEMENT BY THE COURT.

This is a suit under sections 6644 and 6645 of Kirby's Digest (as amended by Acts of 1909, page 135) to recover damages and penalty for an alleged failure on the part of appellants to construct a cattle guard on the inclosed lands of the appellee, through which appellant's railroad ran, after appellee had given appellants notice to construct cattle guards as required by the statute.

Appellants denied that they had failed to construct the cattle guards as required by law, and denied that they were liable to the appellee in damages or liable for the penalty.

The proof on behalf of appellee tended to show that he owned the inclosure; that the railroad was built through the same; that no stock guards had been built on either side where the road entered the inclosure; that he notified the appellants to construct stock guards; that notice was served on the agent at De Queen on May 16, 1911; that he had growing crops on the premises, and did not have any protection against stock until a fence was constructed by the appellants on June 24, 1911. His testimony further shows that his crops had been damaged by reason of trespassing stock, and shows the amount of his damage.

The appellee testified that he did not have any agreement with appellants with reference to the building of a fence. He and appellant's engineer talked about it, but he never agreed to build the fence. They had some conversation about the building of the fence some time about the first of May. This conversation was before the notice was served on appellants. In conversation with the railroad men, they said they would furnish the material. This was satisfactory to the appellee but he did not understand that he was to build the fence. It was satisfactory to appellee to have the fence built, instead of the stock guards.

On behalf of the appellant the evidence tended to show that it had an agreement with appellee, entered into on May 2, 1911 whereby appellants undertook to furnish the material for fencing the inclosure of appellee, and he was to erect the fence. That appellant furnished the material in accordance with the agreement, and it was placed on the ground on May 30, 1911. The material was furnished in due course of business. Appellee did not carry out his agreement. The appellant, Kansas City Southern Railway Company, built the fence. It commenced the construction thereof June 14, and it was finished on June 20 or 21. May 30 was the earliest time that the material could be placed there for the building of the fence. The appellant employed H. H. Morrison, who was a tenant on the land, to build the fence. After the appellant ascertained that the appellee would not build the fence, it built it itself. There was no objection on the part of the appellee to the building of the fence in place of the stock guards.

The court, in effect, instructed the jury on behalf of the appellee, in instruction numbered 1, that if he gave the notice to appellant May 16, 1911, as required by law, to construct stock guards, and if after the expiration of ten days' notice the appellant failed until the middle of June to construct stock guards, the appellee was entitled to recover the actual damages he had sustained, excluding the interest of the tenant in the crops, and that, in addition to the actual damages, he would be entitled to a penalty of not less than twenty-five nor more than one hundred dollars; but the court further told the jury that if the appellee had agreed to accept a fence in lieu of stock guards, and such fence was constructed within a reasonable time after such agreement, then he would not be entitled to recover.

The court further told the jury, in instruction numbered 3, that even though appellee had agreed that a fence might be constructed in lieu of the stock guards, if appellant had failed to comply with its contract within a reasonable time then the appellee would have the right to treat the agreement as abandoned, and to recur to the stock guard law, and to claim and receive compensation thereunder, as well as penalty, if he complied with the statute as to notice, and if the appellant thereafter failed to put in the stock guards.

The court gave the following instruction orally:

"The law requires the railroad company, in going through inclosed lands, to construct staple and safe cattle guards. Now, if you believe from a preponderance of the testimony that the plaintiff agreed to accept a fence on each side of the railroad in lieu of these cattle guards, and if the defendant, within a reasonable time after the agreement, put in the fence, it would not be liable. It was its duty, after you find it was agreed by and between the plaintiff and the defendant that the fence should be substituted, to put in the fence or furnish the material within a reasonable time; and you should take into consideration the circumstances of the case, what would be a reasonable time; take into consideration the growing crop in the field exposed to stock, and what would be a reasonable time to furnish the material or put in the stock guards if that agreement was made. If the defendant failed to furnish the material, and failed to furnish the fence after it agreed to do so within a reasonable time, then it would be liable for the actual damages and such penalty as you might think the plaintiff entitled to. On the contrary, if you find there was no agreement to accept the fence instead of the cattle guard, or if he didn't agree to build the fence, and neither the fence nor the cattle guards were put in after ten days' notice, the defendant would be liable to a penalty on whatever damages you might agree to fix the penalty, not less than twenty-five nor more than one hundred dollars, which you may see fit to assess."

The appellant saved no exceptions to this instruction.

The appellant asked instructions to the effect that if the appellee agreed to accept the fence in lieu of stock guards and the appellant was ready to build the stock guards, and within a reasonable time complied with its agreement, if there was an agreement, by building the stock guards, then the appellee could not recover. And further, that if the employees of the appellant believed that appellee would build the fence, then the delay from and after May 30 until the fence was built, June 21, would not be such a delay as would...