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

• Decision Date: 21 February 1905
• Court: Missouri Court of Appeals
• Parties: LITTON v. CHICAGO, B. & Q. R. CO.<SMALL><SUP>*</SUP></SMALL>

85 S.W. 978

111 Mo. App. 140

LITTON v. CHICAGO, B. & Q. R. CO.^*

St. Louis Court of Appeals. Missouri.

February 21, 1905.

RAILROADS — DUTIES TO FENCE — INJURY TO STOCK — PLEADING — VARIANCE — FAILURE TO OBJECT — HARMLESS ERROR.

1. While one whose land does not adjoin a railroad right of way cannot recover damages from the railroad under the statute for the killing of his animals going upon the track by reason of defective right of way fences where there is a lawful intervening fence on the lands between his land and the railroad, yet he may recover from the railroad where the intervening private fence has been partly demolished, and does not constitute a lawful fence, and the right of way fence is defective, or a gate thereon is negligently left open.

2. A complaint, under the double-damage act, for injury to stock getting upon a railroad right of way, should allege whether the negligence complained of was a defective or improperly constructed gate or fence, or permitting a properly constructed gate to remain open an unreasonable length of time.

3. Rev. St. 1899, § 655, declares that no variance between the allegations and proof shall be deemed material unless it has actually misled the adverse party to his prejudice, which fact must be shown by affidavit. Section 656 provides that, when an immaterial variance occurs, the trial court may direct the facts to be found according to the evidence, or may order an immediate amendment, without costs. Rev. St. 1899, § 798, provides that a failure to prove a cause of action in its entire scope and meaning shall be deemed a failure of proof, and not a variance. Held, that evidence that a railroad negligently left a gate in its right of way fence open, and that plaintiff's animals got onto the right of way through the gate, constituted a variance from, and not a failure to prove, a petition alleging negligence in the maintenance of the fence and gate, and such variance was waived by a failure to object to the testimony and claim a variance in accordance with the statute, although an objection to an instruction submitting the case to the jury on the issue of the open gate was taken.

4. Under Rev. St. 1899, §§ 659, 672, 865, providing that no judgment shall be reversed for a defect in the pleadings not affecting substantial rights, or for an omitted averment, without proof of which the verdict ought not to have been given, or for error not materially affecting the merits, the submission of a cause to the jury on the theory that plaintiff's animals got onto defendant's right of way through an open gate, whereas the petition alleged defendant's negligence merely in the matter of maintaining the fence and gate, was not reversible error, where defendant introduced evidence disproving plaintiff's testimony that the gate was left open, and tried the case without complaint on the theory that the matter of the open gate was in issue.

Appeal from Circuit Court, Lincoln County; Houston W. Johnson, Judge.

Action by Haney Litton against the Chicago, Burlington & Quincy Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Palmer Trimble, for appellant. Dudley & Palmer, for respondent.

Opinion.

GOODE, J.

Action on the statute to recover double the value of two mules killed by a locomotive of the defendant company. The complaint, among other things, avers as follows: "That said mules came upon the track of said railroad and were killed in said township at a point where said railroad passes through and along inclosed and cultivated fields and uninclosed lands, and where defendant was required by law to erect and maintain lawful fences on the sides of its said road, with openings and gates therein, and where there was not any crossing of said road by a public highway, and not within the limits of any incorporated city, town, or village; that defendant on said 8th day of August, 1903, and for a long time prior thereto, failed and neglected to keep and maintain along the sides of its said railroad, at the point where said mules got upon its track as aforesaid and were killed, lawful fences, with openings and gates therein hung, and having latches or hooks, so that the same might be easily opened and shut at necessary farm crossings of the road; and that by reason of said neglect and failure on the part of the defendant, the plaintiff's said mules got upon said railroad track, and were struck and killed, and the killing of said mules was occasioned then and there by reason of the neglect and failure aforesaid on the part of the defendant." The railroad company was shown by the testimony of the plaintiff himself to have a good fence at the place where the mules entered the right of way; but there was a gate in the fence there, and some testimony tended to prove the gate had a fastening which was out of order, and other testimony to prove the gate was left open for long periods. That the fastening worked well and was in perfect repair was also supported by testimony. One witness swore he saw the gate open on Saturday before the mules were killed on Sunday, and again on Sunday during the day, and on Sunday night he found the bodies of the mules near the track. Plaintiff's land did not adjoin the right of way, but was separated from it by a neighbor's farm. Several lines of fence ran between the inclosure in which he kept his mules and the railroad track. On this fact the defendant raises the proposition that plaintiff is not entitled to recover, even if the right of way was imperfectly inclosed. There would be merit in this contention if the private fences intervening between the plaintiff's inclosure and the right of way had been lawful fences and sufficient to turn stock, but they had been more or less swept away by floods, so that stock could easily pass through the fields of plaintiff's neighbor whose farm adjoined the right of way. We understand the law to be that a farmer whose land does not join a railroad right of way cannot recover damages from the railroad company if an animal of his gets on the track by reason of defective railway fences along the right of way and is killed, provided there is a lawful private fence between his land and the railway — that is to say, a lawful intervening fence on the lands of the proprietor, adjacent to the railroad. In such instances the private fence takes the place of a fence along the right of way, so far as the nonadjacent proprietor is concerned. But if no lawful fence intervenes, either along the right of way or elsewhere, and an animal belonging to an owner of land not adjacent to the railway goes across intervening lands to the track and is killed, an action for damages on the statute lies. This is the law maintained by numerous cases. Berry v. R. R., 65 Mo. 172; Harrington v. R. R., 71 Mo. 384; Rinehart v. R. R. (Mo. App.) 80 S. W. 910; Phillips v. R. R. (Mo. App.) 80 S. W. 926. In the cases cited the Missouri authorities bearing on the question are collated, and we think they all declare the rule as stated, except Ferriss v. R. R., 30 Mo. App. 132. Remarks are made in that case which look inconsistent with the other decisions, but it would support the right of the present plaintiff to recover. In the Ferriss Case the animal killed went on the track neither from lands contiguous to the right of way, nor lands next back, but passed across the farms of several intervening proprietors — in fact, had traveled four miles before reaching the railroad. On this state of facts, a recovery was denied. But it was said the adjoining owner may waive a fence on that part of his land next to a railroad, in which event his other fences stand as railroad fences, and the owner next adjoining may have a cause of action against the railroad if such fences are insufficient. That statement of the law covers the present case. As the plaintiff's mules crossed his neighbor's fields through fences which had been partly demolished, and then went on the railroad track through a defective fence, or through a gate which the railroad company had negligently left open, the plaintiff has a cause of action on the statute for double damages.

It will be observed from the quoted portion of the complaint that the plaintiff did not count on the negligence of the defendant in leaving a gate open, but on its failure to keep and maintain lawful fences and gates as required by the statutes. Most of the evidence went to show the mules got on the track through an open gate, and that the gate being open was the proximate cause of the accident. No objection was interposed to the reception of this evidence, and the defendant met it with counter evidence to show the railway company was careful to keep the gate closed. The court instructed the jury that if they believed the gate in question was open, and the mules went through it, and that it had been standing open for such a length of time that the defendant knew or ought to have known the fact, and closed it before the mules went through, then the failure to close the gate was negligence on the part of the defendant, and the verdict should be for the plaintiff. This instruction was given against the defendant's objection. We grant that negligently letting a gate in a right of way fence remain open constitutes a violation of the statute requiring lawful fences to be maintained, and entitles a party whose animal is killed in consequence of having passed through the open gate to double damages. But the question presented in this case is one of pleading, and is as to the right of the plaintiff, who complained only of a defective or improperly constructed gate and fence, to have a verdict on account of the negligence of the railroad company, not in suffering a gate or fence to be out of order, but in letting a gate stand open an unreasonable length of time. We examined this question in Stonebraker v. Chicago, etc., R. R. (Mo. App.) 85 S. W. 631, and held that a complaint for not fencing or for having a...