Kitsock v. Chicago, B. & Q. R. Co.

• Citation: 226 S.W. 269
• Decision Date: 03 November 1920
• Docket Number: Mo. 16016.
• Parties: KITSOCK v. CHICAGO, B. & Q. R. CO.
• Court: Court of Appeal of Missouri (US)

226 S.W. 269

KITSOCK v. CHICAGO, B. & Q. R. CO.

Mo. 16016.

St. Louis Court of Appeals, Missouri.

November 3, 1920.

Appeal from Hannibal Court of Common Pleas; Wm. T. Ragland, Judge.

"Not to be officially published."

Action by Mike Kitsock against the Chicago, Burlington & Quincy Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

H. J. Nelson, of St. Joseph, and Mahan, Smith & Mahan, of Hannibal, for appellant.

D. H. Eby and Ben E. Hulse, both of Hannibal, for respondent.

BARNES, C.

This is an action brought under section 3145, R. S. of Mo. 1909, for double damages, for the killing of plaintiff's horse. The alleged value of the horse was $200. The trial resulted in a verdict for plaintiff for $100, which sum was doubled on rendering judgment. Defendant, after unsuccessfully moving for a new trial and in arrest of judgment, appealed. The allegations of the petition pertaining to the fence are as follows:

"* * * Said horse casually strayed in and upon the railroad tracks of defendant's said line of railroad at a point where said line of railroad passes through, along, and adjoining inclosed and cultivated fields and uninclosed land in Saverton township in said Rails county, Mo., and at a point where defendant was by law required to erect and maintain good and lawful fences on and along the sides of said line of railroad, * * * and at said point where said horse entered upon said line of railroad as aforesaid, the defendant had not erected and maintained such or any fences, * * * and there was at said time and place no such or any fences. * * * That said horse strayed and went in upon said railroad tracks by reason of the failure and neglect of the defendant to erect and maintain good and lawful fences on and along the sides of said line of railroad, * * * as aforesaid where said horse entered upon said railroad tracks as aforesaid. * * * "Plaintiff says that at all the times herein mentioned, and for a long time prior thereto, the defendant had full knowledge of the fact that no such or any fences * * * had been erected and maintained along the sides of said line of railroad by defendant at the point where said horse went upon said railroad tracks, as aforesaid; and that defendant was possessed of such knowledge for a sufficient length of time prior to the injury and killing of mid horse, as aforesaid, to have enabled it, in the exercise of ordinary care on its part, to have erected and maintained good and lawful fences along the sides of said line of railroad * * * and thereby prevented the injury and killing of said horse, as aforesaid."

The petition contained all other necessary averments.

The amended answer, admitted defendant to be a railroad corporation owning and operating the line of railroad described in the petition, denied every other allegation, and, further, that the defendant was not liable for the killing of plaintiff's horse, because plaintiff did not own any land adjoining the right of way, or adjoining the land of any person that adjoined the right of way.

The evidence on behalf of plaintiff tended to show that on August 9, 1918, plaintiff directed his young son to take two of his horses to graze. The boy led the horses from his father's place by halter to lands owned by A. J. Stillwell. The route taken by the boy was to lead the horses onto defendant's right of way, either through a gap in the fence on the west side of the right of way, or through the fence by raising the top and holding down the lower wires thereof; then along the right of way for a considerable distance to defendant's bridge spanning Marble creek; and then under the bridge, across the bed of the creek, and across the right of way out onto the Stillwell lands, where he turned them loose, first having removed the halter from the horse that was killed. The boy then went to the river to fish.

The Stillwell lands extend east from the railroad right of way to the Mississippi river, and at the point where the horse was turned to graze was some 600 feet wide, subject to overflow, and covered with willows, weeds, and grass. Along the railroad embankment, on the river side, between it and the Stillwell lands, and for a total distance of some three-quarters of a mile, the defendant had erected a stone wall, which was from 2½ to 5 feet high, varying in places, and its maximum and minimum heights varying as the recollection of the witnesses thereto differed. This stone wall was so nearly perpendicular that it precluded the probability of animals going over same. At a point near the bridge, and of the width of several feet, some of the stones had been removed or displaced; the earth had washed down over them and on the ground, so that there was an incline through the gap in the fence extending from the Stillwell land to the railroad track, at an angle of some 45 degrees, up which stock had been observed to go. The evidence further tends to disclose that the stones were displaced at the time of the erection of the abutments to the bridge, some two years prior to the action. Other testimony tended to show that the stones were displaced and the incline in practically the same condition for a year prior to the accident.

Plaintiff's horse was shod. It was observed on the railroad tracks shortly prior to the passing of a train. One witness who observed the horse on the tracks heard a train go by and a sound "like two boards hitting together," looked back, and the horse was no longer visible. The ground up the incline, through the defect in the fence, and on top of the railroad embankment was...