L. & N.R. Co. v. Calloway

• Decision Date: 23 February 1926
• Parties: Louisville & Nashville Railroad Company v. Calloway.
• Court: United States State Supreme Court — District of Kentucky

213 Ky. 235

Louisville & Nashville Railroad Company v. Calloway.

Court of Appeals of Kentucky.

Decided February 23, 1926.

1. Railroads — Statute Regarding Division of Loss when Cattle Killed by Trains Held Inapplicable when Fence Not Lawful (Ky. Stats., Sections 809, 1780). — Ky. Stats., section 809, regarding division of loss when cattle are killed by trains without negligence does not apply where fence erected by railroad was in such condition as not to be lawful fence within section 1780.

2. Railroads — Demurrer to Railroad's Answer, Setting up Failure of Owner of Animal Killed to Construct Fence and Knowledge of Defect, Held Properly Sustained (Ky. Stats., Sections 1789-1799). — In action to recover damages for bull killed by railway through failure to maintain a fence erected under Ky. Stats., sections 1789-1799, demurrer to answer setting up plaintiff's failure to build and maintain fence on one-half of division line, and knowledge by plaintiff of defective condition of existing fence, held properly sustained, where it was not averred that railroad had called upon plaintiff to build or maintain one-half of fence, or that plaintiff had originally constructed or failed to keep part of fence in repair.

3. Railroads — Contributory Negligence in Turning Bull Into Field Without Examining Fence Held Question for Jury. — Whether owner of a bull, killed by railway, was guilty of contributory negligence in turning bull into field without investigating to see if fence on railroad's right of way had been properly built, held a question for jury.

4. Railroads — Instructions on Railroad's Duty to Fence and Contributory Negligence of Owner of Animal, Held to Present Every Issue of Fact (Ky. Stats., Sections 1780, 1789, 1799). — In action to recover damages for bull killed by railroad, instructions as to duty of railroad under Ky. Stats., sections 1780, 1789, 1799, and as to contributory negligence, held to present every issue of fact in case.

5. Trial — Requested Instruction, the Same in Substance as that Given by Court, Held Properly Refused. — Requested instruction on contributory negligence of owner of bull killed by train, the same in substance as that given by court, though somewhat longer and not in all respects based on the evidence, held properly refused.

6. Damages — Evidence Held to Warrant Jury in Fixing Value of Bull Killed by Train at $2,000.00. — In action to recover damages for a thoroughbred, pedigreed, shorthorn bull killed by railroad, evidence held sufficient to warrant jury in fixing value of bull at $2,000.00.

7. Appeal and Error — Refusal of Proof of Little Probative Value Held Not Prejudicial Error. — In action to recover damages for bull killed by railroad, refusal to permit railroad to prove amount for which plaintiff had listed his entire herd, including the particular bull, for taxation, was not prejudicial error; the evidence being of little or no probative value.

Appeal from Henry Circuit Court.

WOODWARD, WARFIELD & HOBSON, ASHBY M. WARREN and WILLIAM B. MOODY for appellant.

WILSON D. CRABB and TURNER & TURNER for appellee.

OPINION OF THE COURT BY JUDGE SAMPSON

Affirming.

Appellee, Calloway, sued the railroad company to recover $3,000.00 for a shorthorn herd bull killed by the railroad company, on its track adjacent to his farm in Henry county, and recovered a verdict for $2,000.00, and the railroad company appeals.

Appellee is a breeder of shorthorned cattle, keeping a large herd of cows and one or more bulls for the purpose. His farm adjoins the right of way of appellant railroad company for several hundred yards. He had owned this farm for six or seven years before the bull was killed. Before he purchased the farm the railroad company, according to the averments of the pleadings and the evidence, had erected a woven wire fence on the line between its right of way and the lands now owned by appellee, Calloway, and since that time had attempted to maintain it. The fencing of the right of way of railroads is governed and controlled by section 1789 to and including section 1799, Kentucky Statutes. In certain cases, however, the recovery for cattle killed by trains on railroad tracks is controlled by section 809, Kentucky Statutes, but we think this section has no application to the facts of this case. According to the pleadings and proof of appellee, Calloway, the railroad company had allowed the fence built by it on the right of way to fall into bad repair, and at the time of the killing of the bull was not a lawful fence within the meaning of section 1780, Kentucky Statutes. This action was prepared and tried upon the theory that where the railroad company erects a fence along its right of way and between its right of way and the farm lands of another, and attempts or pretends to maintain the fence it becomes its duty to maintain it as a lawful fence within the terms of section 1780, and if it fails to do so and stock on the adjacent farms wander from the fields through or over the defective fence onto the railroad track and are killed by trains, through no negligence of the owner of the cattle, the railroad company is liable. This view finds support in the opinion in the case of Crawford v. Southern Railroad Company, 153 Ky. 812. This principle, however, is challenged by the railroad company in this case, it being asserted for the railroad company that the opinion in the Crawford case should be overuled because it disregards section 809, and devolves a duty upon the railroad company to pay full damages for stock killed by the train without negligence where it gets on the track through an inadequate fence constructed and maintained by the railroad company.

In its answer the railroad traversed the averments of the petition as to negligence in the maintenance of the fence and the operation of its trains, and denied its liability in toto. In a second paragraph it pleaded that the division fence of which complaint was made in the petition "was and is a division fence constructed on the division line between the right of way of this defendant and the tract of land owned by the plaintiff mentioned and described in the petition; that it owned, controlled and operated its line of railroad over said right of way for more than ten years immediately preceding the date and event set out in the petition, and that it was thereby put on equal terms and obligations with other land-owners owning adjacent lands in this Commonwealth, and with the plaintiff." It was further averred in the second paragraph of the answer that the plaintiff, Calloway, was under legal obligation to build and maintain a lawful fence on one-half of the division line between his land and the right of way of the railroad company; that he owned, managed, conducted and lived upon his farm for a number of years before the death of the bull, and that he was, therefore, fully acquainted with the defective condition of the fence during all of that time but that he never constructed or offered to construct, repair or keep in condition one-half or any portion of the division fence, and it was further averred that it was his duty to maintain and keep one-half of the division fence, and his failure to do so estopped him to claim or assert damages against the railroad company for the loss of the bull. To this paragraph the trial court sustained a general demurrer, and we think properly, because it is not averred that the railroad company had theretofore called upon appellee, Calloway, to build one-half of the fence or to maintain or repair it; nor was it averred that appellee, Calloway, had originally constructed one-half of the fence or that he had failed or neglected to keep in repair an equal amount of...