Martin v. The Atchison

• Decision Date: 06 June 1914
• Docket Number: 18,885
• Citation: 92 Kan. 595,141 P. 599
• Parties: T. B. MARTIN, Appellee, v. THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, Appellant
• Court: Kansas Supreme Court

141 P. 599

92 Kan. 595

T. B. MARTIN, Appellee, v. THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, Appellant

No. 18,885

Supreme Court of Kansas

June 6, 1914

Decided January, 1914.

Appeal from Hamilton district court; GEORGE J. DOWNER, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. NEGLIGENCE--Cattle Guards--Filled with Snow and Ice. It is the duty of a railway company to exercise reasonable or ordinary care to keep its cattle guards from becoming so filled with snow and ice as to make it possible for animals to cross them, and for negligent failure in this respect the company is liable for injuries to animals thus getting upon its right of way.

2. SAME--Negligence Question of Fact for Jury. Where a railway company has erected and maintained good and lawful fences and sufficient cattle guards to prevent stock from getting upon its right of way, the question whether it was negligent in failing to keep its cattle guards from becoming so filled with snow and ice as to make it possible for animals to cross the same depends upon the facts and circumstances, and is a question for the jury to determine under proper instructions.

3. SAME--Plaintiff Not Entitled to Attorney's Fee. In an action to recover for animals injured on the right of way, where the facts are as stated in the preceding paragraph, and plaintiff recovers on the sole ground of the negligence of the railway company in failing to remove snow and ice from its cattle guards, the plaintiff is not entitled to an allowance for attorney's fees.

William R. Smith, Owen J. Wood, Alfred A. Scott, all of Topeka, and George Getty, of Syracuse, for the appellant.

U. T. Tapscott, of Syracuse, and Edgar Foster, of Garden City, for the appellee.

Porter J. Burch, J., Smith, J., dissenting.

OPINION

PORTER, J.:

The railway company appeals from a judgment in plaintiff's favor for $ 400 damages and $ 100 attorney's fees. The action was to recover the value of stock killed by one of the trains of the defendant. The stock escaped from plaintiff's enclosure, went upon the highway and entered the defendant's right of way over a cattle guard at a highway crossing. They were killed by a passenger train on January 27, 1912, at four-thirty in the afternoon. There was about six inches of snow on the ground. The petition alleged that the defendant knowingly and negligently permitted its cattle guards at this place to become and remain in bad condition; that there was not a sufficient fence or cattle guard where the stock got on the right of way to prevent stock from crossing from the public highway to the right of way. The jury made a number of special findings, among which are that the width between the wing fences and between the cattle guards where the public road in question crosses the defendant's railway was fifty-nine feet and six inches; that two mares and one mule belonging to plaintiff crossed over the cattle guards west of the highway. They find that the railway of the defendant was enclosed with a good and lawful fence at the place where the animals crossed; that the cattle guards were not defective but were allowed to become obstructed by snow, and that the defendant was negligent in not keeping the guards clear of snow. These findings present the issue in the case which we regard as controlling. The railway company demurred to the evidence, and after the verdict moved for judgment in its favor on the findings of the jury, and now contends that the court erred in overruling the demurrer and the motion for judgment.

The defendant relies first upon a decision in the recent case of Wood v. Railroad Co., 88 Kan. 477, 129 P. 193, in which the court said:

"Section 5 of the stock law of 1874 (Gen. Stat. 1909, § 7005) excepts from the operation of that act any railway company whose road is inclosed with a good and lawful fence to prevent animals from being on the road. As it is impracticable if not impossible to fence across the railroad track it has frequently been held that the inclosure of the track is complete when the fences on either side are connected at proper places with wings and cattle guards sufficient to prevent the animals from going upon the track, but in such instances under that statute a cattle guard is deemed a portion of the fence and the failure to provide a sufficient guard is equivalent to the failure to provide a sufficient fence." (p. 480.)

Their contention is that as a cattle guard is deemed a portion of the fence a railroad company is under no more obligation to remove snow from a cattle guard than from both sides of fences, and that the statute has been complied with when a cattle guard, wing fences and fences in proper condition are provided. They insist that to place a further burden on the defendant requires an "ingenious and erroneous interpretation of the legislative intent." The argument is that when snow extends any considerable distance along the right of way it would require a great number of additional employees to keep cattle guards clear, and that this would impose an unfair and unreasonable burden upon the railway company, and that the value of the services compared to the cost necessarily imposed would be grossly incommensurate with the paramount duty which the company owes to the public; that usually it would require a waste of energy or money to require the removal of snow from all cattle guards in order "to provide a contingent benefit for the trespassing cattle of negligent and careless owners." A case directly in point, which is relied upon, is Blais v. Minneapolis & St. Louis Ry. Co., 34 Minn. 57, 24 N.W. 558, where it was said:

"Reasonable care and diligence do not require a railway company, unless under exceptional and extraordinary circumstances, to remove the natural accumulations of snow and ice from cattle-guards." (Syl.)

The doctrine was followed and applied in Stacey v. Winona & St. Peter R. Co., 42 Minn. 15, 43 N.W. 905, where it was held that it was error to refuse to charge the jury, as requested, that the railway company was not negligent in failing to remove snow and ice from cattle guards. Another case cited is Wait v. Railroad Company, 61 Vt. 268, 17 A. 284, where it was said that "the statute . . . can not mean that a guard must be so built that under no circumstances could an animal cross it, but under all ordinary circumstances is it sufficient to prevent cattle and other animals from getting upon the track." (p. 280.)

Counsel for plaintiff cite no cases to the contrary, but they argue that this court should consider the different conditions existing in states like Minnesota and Vermont and those which prevail in western Kansas, where it is said that very little snow falls and cattle may graze through the entire season. It is insisted that the burden of removing what little snow might fall on cattle guards in western Kansas would not be great; that a six-inch snow might fall in that section twice in three years. But if snow seldom falls in that locality sufficient to block the cattle guards, that might be a circumstance for the consideration of a jury in determining whether it was reasonable to expect a railway company to keep enough men in its employ to remove it when it should fall. It happens occasionally, even in this state, that snow falls or drifts up to a level with an ordinary fence, or to such an extent that the fence, though a lawful one, furnishes no obstruction to stock.

Owing to the danger to persons and property being transported on the railway from collisions of trains with trespassing animals, as well as danger to the animals themselves, the statute makes the railway company liable irrespective of any negligence on the part of the company, provided the stock gets upon the right of way at a place where the road is unfenced and "where it can and ought to be fenced." (Hopkins, Warden, v. K. P. Rly. Co., 18 Kan. 462, 465.) The statute contains a provision that it shall not apply to any railway company whose road is enclosed with a good and lawful fence to prevent animals from coming on the right of way. (Gen. Stat. 1909, § 7005.) Here the railway company had erected what the jury find to be a good and lawful fence, and the judgment can only be upheld upon the theory that the defendant was negligent as a matter of law in failing to remove the snow from its cattle guards.

A large number of "snow and ice" cases from courts of various states may be found cited in a note in 36 L.R.A. N.S. 997, where it is said that the weight of authority holds it to be the duty of a railway company to keep its cattle guards in repair, and that this imposes upon it the duty to exercise reasonable or ordinary care to keep its cattle guards from becoming so filled with snow and ice as to make it possible for animals to cross them, and for negligent failure in this regard the company is liable for injury to animals thus crossing them. The case at bar seems to have been tried upon the theory that the mere fact that a cattle guard is filled with ice and snow sufficient to permit cattle to cross them amounts to negligence in law, for which the company is liable if by reason thereof animals get upon the track and are injured. This is not the law. Whether a railway company was negligent in failing to remove the snow and ice depends upon the facts and circumstances disclosed by the evidence in each particular case, and is a question for the jury to determine under proper instructions.

In Grahlman v. The Chicago, St. P. & K. C. Ry. Co., 78 Iowa 564, 43 N.W. 529, 5 L. R. A. 813, it was held, in substance, that the company is not required to keep its cattle guards free from snow regardless of circumstances, but must use ordinary care and diligence in this respect. The ...