Kirkpatrick v. Illinois Southern Ry. Co.

• Decision Date: 16 October 1906
• Citation: 120 Mo. App. 416,96 S.W. 1036
• Parties: KIRKPATRICK et al. v. ILLINOIS SOUTHERN RY. CO.
• Court: Missouri Court of Appeals

96 S.W. 1036

120 Mo. App. 416

KIRKPATRICK et al. v. ILLINOIS SOUTHERN RY. CO.

St. Louis Court of Appeals. Missouri.

October 16, 1906.

1. RAILROADS — OPERATION — FENCES — INJURY TO ANIMALS—PROXIMATE CAUSE.

Where cattle stray upon a railroad track by reason of the company's failure to maintain a right of way fence, as required by Rev. St. 1899, § 1105, and are killed after crossing a place where a cattle guard should have been constructed, the proximate cause of the injury is the failure to construct the fence, rather than the failure to maintain the cattle guard.

2. SAME—PLEADINGS—VARIANCE.

Proof that cattle strayed upon a railroad track where the company had erected no fence, as required by Rev. St. 1899, § 1105, and were killed after crossing a place where there should have been a cattle guard, is not a variance from a petition alleging that the cattle were killed by reason of the failure to construct the fence.

3. SAME—CONTRIBUTORY NEGLIGENCE.

The turning of hogs into a field adjoining a railroad right of way, not fenced by the company, as required by Rev. St. 1899, § 1105, through which right of way it was known they could escape into another field, is not contributory negligence defeating recovery for injury resulting to the crops in such second field.

Appeal from Circuit Court, St. Francois County; Robt. A. Anthony, Judge.

Action by J. R. Kirkpatrick, as executor of Noah M. Kirkpatrick, deceased, against the Illinois Southern Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Plaintiff, as executor of the estate of Noah M. Kirkpatrick, deceased, instituted this suit to recover for the estate the value of certain cattle owned by his testator, and killed and injured by defendant railroad company, as well as for damages to certain corn and wheat caused by stock entering his field by reason of defendant's failure to erect and maintain right of way fences along the sides of its railroad. The petition is in two counts, predicated upon section 1105, Rev. St. 1899, requiring railroad companies to construct and maintain fences along the sides of their right of way under penalty of double damages for default therein. The cause of action set out in the first count is, in substance, that five head of cattle owned by plaintiff's testator strayed upon defendant's track December 19, 1903, by reason of its failure to construct and maintain fences on the sides of its right of way, as required by said section; that four of said cattle were killed, and one severely injured, by a locomotive engine of the defendant company operated on said railroad, to the damage of plaintiff's testator in the sum of $140, and prayed double damages therefor. The second count was predicated upon that clause of the statute mentioned, declaring railroad companies liable in double the damages accrued "by reason of any horses, cattle, mules, or other animals escaping from or going upon said lands, fields, or inclosures occasioned * * * by the failure to construct or maintain said fences or cattle guards." It is substantially alleged therein that in January, 1904, plaintiff's testator owned a certain farm through which defendant's railroad passed adjacent to certain pastures and cultivated fields; that defendant failed to construct and maintain fences and cattle guards along its right of way sufficient to prevent horses, mules, and other animals escaping from said railroad or going upon said fields; that by reason of such negligence on defendant's part certain animals escaped from said railroad upon the lands and fields mentioned, and destroyed 80 bushels of corn, valued at $40, and 12 bushels of wheat, valued at $10, and prayed double damages therefor. The case was tried by the circuit court without a jury. The evidence introduced under the first count tended to prove that the deceased owned a farm, a portion of which was pasture lands; that the defendant constructed its railroad through the farm and pasture, but wholly failed to construct either fences along the sides of its right of way, or cattle guards on its track, and wing fences thereto were required; and that by reason of the failure of the defendant to erect the fences required by law five head of cattle owned by the deceased came upon the defendant's right of way from the pasture, and wandered along the railroad track about one-half mile north of the point of entry thereon, crossing over a place on the track where the defendant was required by law to construct a cattle guard, but had failed to do so, and north of and beyond this cattle guard point they were run upon by a locomotive engine operated by the defendant, as a result of which four of said cattle were killed and one was severely injured. In support of the second count, the evidence tended to show that certain hogs belonging to the plaintiff's testator and in his pasture came upon the defendant's right of way by...