Litton v. The Chicago, Burlington & Quincy Railroad Company
| Decision Date | 21 February 1905 |
| Citation | 85 S.W. 978,111 Mo.App. 140 |
| Parties | LITTON, Respondent, v. THE CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Lincoln Circuit Court.--Hon. Houston W. Johnson, Judge.
AFFIRMED.
Judgment affirmed.
Norton Avery & Young and Palmer Trimble for appellant.
Dudley & Palmer for respondent.
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 side 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 the 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 non-adjacent 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 as maintained by numerous cases. [Berry v. R. R., 65 Mo. 172; Harrington v. Id., 71 Mo. 384; Reinhard v. Id., 80 S.W. 910; Phillips v. Id., 107 Mo.App. 203, 80 S.W. 926.] In the cases cited Missouri authorities bearing on the question are collated and we think they all declare the rule as stated except Feriss v. R. R., 30 Mo.App. 122. 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 Feriss 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 farm 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 had 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 the 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 have 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., 110 Mo.App. 497, and held that a complaint for not fencing or for having a defective fence, states no cause of action for leaving a gate open. It was decided in Atchison, etc., R. R. v. Kavanaugh, 163 Mo. 54, 63 S.W. 374, that if an animal goes on a railroad track in consequence of a gate being left open, the construction of the gate, whether good or bad, is not the proximate cause of the accident; but the proximate cause is leaving the gate open. Hence, as a plaintiff in a tort case must charge a defendant with the specific omission of duty on which a verdict is expected, this defendant's negligence in permitting the gate to stand open should have been declared on in the complaint.
But the present case differs from the Stonebraker case in one important particular. In the latter case the railway company objected to evidence to prove it negligently left the gate open through which Stonebraker's animal entered the right of way; whereas, in this case such evidence went in without objection. Testimony was introduced by the defendant on the question and both parties treated it as an essential issue of fact to be tried as the pleadings stood. We are, therefore confronted with the question whether, under these circumstances, the court was justified in submitting the issue to a jury by an instruction. This is a proposition on which the decisions in this State are conflicting and we have been perplexed about it frequently. In Price v. Railroad, 72 Mo. 514, it was ruled that though evidence irrelevant to the pleadings is received without objection, the court is not warranted in giving instructions which permit the jury to find a verdict on that evidence. The same ruling was declared in Safety, etc., Bank v. Westlake, 21 Mo.App. 565 and Matson v. Frazer, 48 Mo.App. 302. The opposite view was taken in Mellor v. Railroad, 105 Mo. 455, 16 S.W. 849; Chouquette v. Id., 152 Mo. 257, 53 S.W. 897; Turner v. Id., 51 Mo. 501; Stewart v. Goodrich, 9 Mo.App. 125; Madison v. Railroad, 60 Mo.App. 599. In Mellor v. Railroad, supra, the subject received close attention and was decided by the Supreme Court In Banc, the cause having been certified to the full bench because there was a difference of opinion among the judges of one division on the proposition. The action was for personal injuries. The petition contained no allegation of loss of earnings but evidence to prove the plaintiff had suffered a loss of earnings on account of his injuries was given without an objection from the defendant. An objection was interposed to the court's instructing the jury so as to authorize an award of damages for loss of earnings, for the reason that the petition was silent on the subject. It was decided that loss of earnings must be specially pleaded to...
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