Martin v. Chicago, Burlington & Quincy Railway Company

• Decision Date: 07 May 1907
• Citation: 15 Wyo. 493,89 P. 1025
• Parties: MARTIN v. CHICAGO, BURLINGTON & QUINCY RAILWAY COMPANY
• Court: Wyoming Supreme Court

89 P. 1025

15 Wyo. 493

MARTIN v. CHICAGO, BURLINGTON & QUINCY RAILWAY COMPANY

Supreme Court of Wyoming

May 7, 1907

ERROR to the District Court, Crook County, HON. CARROLL H PARMELEE, Judge.

The material facts are stated in the opinion.

Affirmed.

Robert P. Parker, for plaintiff in error, argued and contended that the failure of the railroad company to keep its right of way fence in repair, knowing its bad condition, and that animals were liable to get upon the right of way through the defective fence and be killed, constituted negligence rendering it liable for the damages sued for, citing, Big Goose & B. D. Co. v. Morrow, 8 Wyo. 537; Ry. Co. v Ives, 12 S.Ct. 679; Ry. Co. v. Kuhn, 6 S.W. 441; Ry. Co. v. Perkins (Ill.), 17 N.E. 1; Thompson v. Ry. Co. (N. Y.), 17 N.E. 690; Ballinger v. St. Paul, 31 N.W. 857; Shafer v. R. R., 9 N.W. 575; Kelly v. R. R., 11 N.W. 67; Hayes v. R. R., 4 S.Ct. Rep., 369; Kerwhacker v. R. R., 3 Ohio St. 173. Further, that it was the company's duty to maintain its fence as a partition fence between its right of way and plaintiff's land, after having constructed the fence, whether erected by statutory requirement or not; and to maintain the fence for the purpose for which it was erected, citing, Miller v. R. R., 84 N.W. 30; R. R. v. Burgan, 37 P. 31; R. R. v. Quertin, 4 N.E. 507; Ry. Co. v. Redmond, 70 Ill.App. 119; Ry. Co. v. Robinson, 40 P. 841; Hathaway v. Ry. Co., 83 N.W. 598; Ry. Co. v. Shaft, 6 P. 908; 16 Cyc., 680, 721, 749, 785.

M. Nichols and N. K. Griggs, for defendant in error.

Plaintiff's petition was properly held insufficient because: 1. It should have alleged, by specific allegation, the corporate existence of defendant. 2. It should have alleged the giving of the notice, as required by Sec. 3215, Revised Statutes of 1899. 3. It should have alleged negligence, as to the injuring of the stock, other than the condition of the fence; this it failed to do.

In the absence of a statute, requiring a railroad company to fence its right of way, no duty rests upon it to so do. (Rorer on Railroads, 614, 1379-1381; Redfield on Railroads, 491, 525-7; 7 A. & E. Ency. L., 906, 912; Locke v. R. R. Co., 15 Minn. 350; Stucke v. Ry. Co., 9 Wis. 202; Lawrence v. Ry. Co., 42 Wis. 328.) And that defendant did, in fact, so fence, added nothing to its liability, it still devolving upon plaintiff, in order to recover, to charge and prove his stock to have been injured through negligence of defendant, wholly aside from all questions as to the character of such fence. (Carey v. Ry. Co., 100 N.W. 19.)

SCOTT, JUSTICE. POTTER, C. J., and BEARD, J., concur.

OPINION

SCOTT, JUSTICE.

The plaintiff in error brought this action in a justice of the peace court of Crook county against the defendant in error to recover damages for the killing of a bull upon its tracks. Judgment was recovered in justice court, whereupon an appeal was taken by the defendant to the district court. The plaintiff filed an original petition in that court which was demurred to, and upon hearing, the demurrer was sustained. The plaintiff electing to stand upon his petition judgment was entered for the defendant. The plaintiff brings the case here on error.

1. The plaintiff in error assigns as error the denial of his motion to dismiss the appeal. The appearance was special for the purpose of making such motion. We need not, however, discuss the question further than to say that if there was any merit in his motion the error in denying it becomes immaterial because the plaintiff thereafter filed a petition as upon the commencement of a new case, thereby invoking the original jurisdiction of the court. (Reedy v. Gift, 2 Kan. 392; 24 Cyc., tit. "As waiver of objections to proceedings for appeal," 694, also p. 723, and cases cited; 12 Ency. P. & P., 816, and cases there cited.)

2. It is alleged in the petition that defendant is and has been a corporation and for many years the owner of and engaged in operating its line of road in and through Crook County, Wyoming, and that plaintiff is and for many years has been the owner of a large tract of land on either side of said road in said county, and of a large number of cattle which ranged and pastured upon said land. That in the operation of said road the defendant caused to be propelled over its tracks both night and day a large number of trains, both passenger and freight, and often at the rate of 30 to 50 miles per hour. That in 1893 the defendant constructed a good and sufficient fence along its right of way over and through plaintiff's land and that he relied upon defendant keeping said fence in repair. That for several weeks prior to the time the bull was killed defendant had negligently permitted the fence to get out of repair, so that it was not sufficient to prevent said bull or live stock from straying upon its right of way and being killed, all of which was known to defendant. That in consequence of such negligence plaintiff's bull on or about August 18, 1905, strayed on to defendant's track and was killed by being run against by defendant's engine and was so killed by reason of defendant's negligence in failing to keep its fence in sufficient repair to prevent stock from entering the right of way. The foregoing sets out all of the allegations of negligence upon which plaintiff predicates his right to recover.

There was no law in this state at the time of the injury complained of requiring railroads to fence their right of way. Such a law has since been enacted. (Chap. 84, S. L. 1907.) Cattle and certain kinds of live stock have always been permitted to run at large. We have now and had then a statute which defines a lawful fence. (Sec. 1973, R. S. 1899.) This section has reference to what is termed a "lawful enclosure." It is provided that unless the fence comes up to the requirements there prescribed it is not a lawful fence, and anyone may have a right of action for damages resulting from injury to his live stock from such illegal fence. The injury for which plaintiff sought damages was not the result of the animal coming in contact with, nor was the animal killed at, the fence. The statutory or common law right to recover damages for injuries to live stock coming in contact with improperly constructed or negligently maintained fences is not, therefore, involved in this case. Nor, in the absence of statute, was the defendant required to fence its right of way in order to avoid liability solely on the ground of the non-existence of such fence. Its liability must be determined upon the principles of the common law. (16 A. & E. Ency. Law, 498, and cases there cited.) By those principles the right of action rested in the negligence of the defendant, and such negligence is never presumed; it must be alleged and proved. (17 Ency. P. & P., 565, and cases cited.) The fact that the animal was killed by the defendant's engine is not sufficient unless coupled with allegations showing that it was the result of negligence in operating the engine or train on the part of the defendant and its employees. (Schenck v. U. P. Ry. Co., and Clark et al., Receivers, 5 Wyo. 430.) No allegations of that kind appear in the petition, nor does it appear that the rate of speed at which the train was running at the time the animal was killed was unusual, reckless or dangerous. The allegation is that the fence was in bad shape; that defendant, though having knowledge thereof, had failed to repair it, and that by reason thereof the animal strayed through the fence on the track and was killed. The pleader has designated as the proximate cause of the killing the failure to keep the fence in repair, but no contractual duty either to build or keep it in repair so as to obstruct ingress to its right of way is alleged nor was such duty imposed by statute--nor was the failure to keep the fence in repair in the absence of such a statute negligence per se. The rule is stated in C. C. & C. R. R. Co. v. Elliott, 4 Ohio St. 474, where it is said: "The bare fact that a railroad is unenclosed, there being no statute requiring it to be fenced, does not, in general, render the...