Laney v. Kansas City, St. Joseph & Council Bluffs R.R. Co.

• Citation: 83 Mo. 466
• Parties: LANEY, Appellant, v. THE KANSAS CITY, ST. JOSEPH & COUNCIL BLUFFS RAILROAD COMPANY.
• Decision Date: 31 October 1884
• Court: United States State Supreme Court of Missouri

83 Mo. 466

LANEY, Appellant,

v.THE KANSAS CITY, ST. JOSEPH & COUNCIL BLUFFS RAILROAD COMPANY.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Buchanan Circuit Court.--HON. WM. H. SHERMAN, JUDGE.

AFFIRMED.

B. R. Vineyard for appellant.

(1) The court below committed error by sustaining the demurrer to the evidence. (2) When stock is killed on a railroad track along inclosed or cultivated fields, and the road is not fenced as required by law, the company will be liable, regardless of the question of negligence. Nall v. R. R. Co., 59 Mo. 112; Fickle v. R. R. Co., 54 Mo. 219; Walther v. R. R. Co., 55 Mo. 271; Lantz v. R. R. Co., 54 Mo. 228. (3) It is a question for the jury to determine, whether the company has been negligent in failing to construct or maintain lawful fences along its track, with gates therein at the farm crossings, with hooks or latches thereon properly constructed and attached thereto. Hammond v. R. R. Co., 43 Iowa 168; McKenly v. R. R. Co., 43 Iowa 641. If a gate does not have a proper fastening, or is left open by the railroad company, or by others with its knowledge, the statute requiring the maintenance of the fence is broken. Spinner v. R. R. Co., 67 N. Y. 153; R. R. Co. v. Arnold, 47 Ill. 173; McKinley v. R. R. Co., 47 Iowa 79. If a defective fence is shown to exist, that the company did not know of such defect is a matter of special defence, which must be pleaded by the company in courts of record, and proved in all courts where the matter is brought in issue. R. R. Co. v. Sullivan, 38 Ind. 262. (4) Under the evidence the ascertainment of the cause of the mare's death was a question for the jury to determine. Blewett v. R. R. Co., 72 Mo. 583. (5) It was defendant's duty to keep its fence, including the gate and its fastenings, in proper repair. On the fact that it would discharge this duty, plaintiff had a right to rely. Railway Co. v. Smith, 38 Ohio St. 410; Evans v. Railway Co., 30 Minn. 489; Rogers v. Railroad Co., 1 Allen, 16; Johnson v. Railroad Co., 29 Minn. 425. Even if no fence had been built by defendant along its track, plaintiff would have had the right to turn his horses into the field. In Missouri live stock are free commoners, and the owner is not negligent in permitting them to run at large. Tarwater v. Railroad Co., 42 Mo. 196; Clark's Adm'x v. Railroad Co., 36 Mo. 220. (6) The “ordinary care” required of a railroad company, in keeping its fences in repair, is greater than that exercised by “an ordinary careful farmer.” Much greater diligence and care is required of it than that. Rutledge v. R. R. Co., 78 Mo. 292. Even where an inspection of fences by a company every two days was shown, it was held that whether it had been guilty of negligence was a question for the jury. Evans v. R. R.Co., 30 Minn. 489; McKinley v. Railroad Co., 47 Iowa 79; Mackie v. Railroad Co., 54 Iowa 540. Plaintiff at least made out a prima facie case and should have been permitted to go to the jury. Williams v. Railroad Co. 74 Mo. 453.

Strong & Mosman for respondent.

(1) There was not sufficient evidence that the gate was open through any fault or neglect of the defendant at the time the mare got through it upon the track. It matters not how defective or insecure the gate was, if such defective and insecure condition did not occasion the injury. R. S. § 809; Clardy v. Ry. Co., 73 Mo. 567; Cecil v. Ry. Co., 47 Mo. 246. A railroad company is not liable under this section for the killing of stock which comes upon the track through a gate left open by some one else without the consent of the company. Harrington v. Ry. Co., 71 Mo. 384. “Where the circumstances point just as much to the negligence of the plaintiff as to its absence, or point in neither direction, he cannot recover.” Cordell v. N. Y. & H. R. Co., 75 N. Y. 330; Branagan v. Ry. Co., 75 Ind. 490; Holman Case, 62 Mo. 564; Wood v. C. M. & St. P. Co., 51 Wis. 201; Smith v. C. M. & St. P. Co., 42 Wis. 520; 46 Wis. 259; 44 Wis. 405; Lawrence v. Ry. Co., 42 Wis. 329; 29 Barb. 228; Lewis v. Railroad Co., 38 Md. 588; Railroad Co. v. Swearingen, 47 Ill. 206; Lehman v. Brooklyn, 29 Barb. 234; Railway Co. v. Henrice, 92 Pa. 431; Muddle v. Stride, 9 C. P. 380; Ry. Co. v. Kirkwood, 45 Mich. 51; Smith v. Railroad Co., 37 Mo. 287. (2) So far as appears from the evidence, the mare may have been frightened and run ahead of the train and fallen into the culvert and over the sides of the bridge into the ravine and been killed by the fall. In such case, plaintiff could not recover. Seibert v. Railroad Co., 72 Mo. 565. This action being for double the damages sustained by the plaintiff, it devolves upon him, by his proof, to bring “his case strictly within the terms or conditions authorizing it.” Parrish v. Ry. Co., 63 Mo. 287. (3) Plaintiff was guilty of contributory negligence and was not entitled to recover. Poler v. Railroad Co., 16 N. Y. 476. (4) The statute gives no action against a railroad company to recover double the value of animals killed by reason of the failure to construct or maintain openings with gates or bars therein. It gives no right of action to a party to recover double damages for an injury occasioned by the failure to maintain any such gates or bars. The only action given for loss or injury to stock is for a loss or injury (“damage” is the word in the statute) “occasioned * * * by the failure to construct or maintain such fences or cattle-guards.”

NORTON, J.

This action was commenced before a justice of the peace of Benton township, Andrew county, to recover damages alleged in the first count of the statement to have been occasioned by the negligent failure of defendant to erect and maintain good and lawful fences, with good and lawful gates along the sides of its road where the same passes through plaintiff's enclosed and cultivated lands, by reason of which one of plaintiff's black mares escaped and entered upon defendant's track and was killed. The second count for cause of action states that defendant erected fences on either side of its track in Benton township, where the same runs through plaintiff's cultivated land, and erected gates in said fences at a farm crossing in plaintiff's enclosed fields and cultivated land, and negligently permitted said gates to become rotten and dilapidated and out of repair, so that they would not remain fastened and shut, but stood open, so that horses could pass through, and that, by reason of such neglect plaintiff's mare escaped onto defendant's track and was killed.

Plaintiff recovered a judgment before the justice, from which defendant appealed to the circuit court of Andrew county, from which court defendant took a change of venue to the circuit court of Buchanan county, where, on the trial, the court sustained a demurrer to plaintiff's evidence, and rendered judgment for defendant, from which plaintiff appeals, and assigns the action of the trial court in sustaining the demurrer to the evidence as error.

The first count in the statement alleges, as the cause of action, that the damage of which plaintiff complains was occasioned by reason of defendant's failure to erect good and lawful fences with lawful gates at the farm crossing, where defendant's road passes through cultivated fields of plaintiff. The consideration of this count is entirely eliminated by the evidence of plaintiff, in which he says he claimed that his mare got on the track because the gate was open, not on account of the insufficiency of the fence, but the insufficiency of the fastenings of the gate and the negligence of defendant in not repairing it.

The second count substantially states, as the cause of action, that defendant negligently permitted the gate at the farm crossing to become rotten and dilapidated and so much out of repair, that the same would not and did not remain fastened or shut, but stood open, so that...