McBride v. Kansas City, St. Joseph & Council Bluffs Ry. Co.
| Decision Date | 04 January 1886 |
| Parties | GEORGE E. MCBRIDE, Respondent, v. KANSAS CITY, ST. JOSEPH & COUNCIL BLUFFS RAILWAY COMPANY, Appellant. |
| Court | Kansas Court of Appeals |
APPEAL from Buchanan Circuit Court, HON. JOSEPH P. GRUBB, Judge.
Affirmed.
The case and facts are stated in the opinion of the court.
E. S GOSNEY, with STRONG & MOSMAN, for the appellant.
I. Under the statute (section 809, Revised Statutes), defendant was not required to construct a fence between its right of way and that of the Hannibal & St. Joseph Railway Company. Schable v. R. R., 69 Mo. 91; Walton v R. R., 67 Mo. 56; R. R. v. Brown, 23 Ill. 94; 27 Ib. 30, 48. The statute is penal, and should be strictly construed. Parish v. R. R., 63 Mo. 284; Tiarks v. R. R., 58 Mo. 45; Cary v. R R., 60 Mo. 209. " It was intended to afford protection to adjoining proprietors in respect to their stock and crops" (78 Mo. 532), not for the protection of strangers. Giles v. R. R., 55 N.H. 552.
II. Plaintiff must show that the place where his steer entered upon the railroad was one where the company was required by law to fence its road. Whitlehouse v. R. R., 64 Mo. 524; Nance v. R. R., 79 Mo. 196; Asher v. R. R., 79 Mo. 432; R. R. v. Lyon, 72 Ind. 107. There can be no presumptions in plaintiff's favor here. It is only in the absence of evidence to the contrary that presumption of negligence is indulged. Walthers v. R. R., 55 Mo. 276; Fickle v. R. R., 54 Mo. 225; Wharton on Negligence, sect. 421.
III. The evidence would not warrant the inference that the injury was caused by any defect in the fence. The evidence leaves it wholly uncertain. Wood v. R. R., 57 Wis. 201. Negligence followed by an injury is not sufficient. Harlan v. R. R., 65 Mo. 25; Henry v. R. R., 76 Mo. 290.
IV. Defendant's instructions should have been given, and it was error to refuse them. Walthers v. R. R., 78 Mo. 617; R. R. v. McKee, 43 Ill. 119.
GREER & BURNES, for the respondent.
I. It was the duty of defendant to erect and maintain fences along the line of its road, although it abutted upon or adjoined the right of way of a parallel road. Rutledge v. R. R., 78 Mo. 286; Rozzelle v. R. R., 79 Mo. 350. Besides this, the finding of the jury is sustained by the evidence that the steer could have gone on the track, through a defect on the east side of the road, where defendant's duty to fence is not denied. Direct evidence that the animal passed through the defective fence is not required. Gee v. R. R., 80 Mo. 283.
II. The instructions asked by defendant were properly refused. Some of them are not law, and some assume facts not proven, and omit evidence of other facts, and some declare there was no evidence, because there was no direct evidence, but abundant circumstantial evidence.
III. There was evidence sufficient to sustain the verdict, and any matter of defence must be shown by the railroad company. R. R. v. Clark, 94 Ind. 111.
IV. The issues were fairly tried, and the verdict was for the right party, and this court will not interfere.
This is an action to recover damages against the defendant, a railroad corporation, for an injury to a steer, the property of plaintiff. The action is founded on section 809, Revised Statutes. The injury is alleged to have resulted from defendant's failure and neglect to fence its road where the same runs through uninclosed land. The case was tried before the court sitting as a jury. Judgment for plaintiff. Defendant brings the case here by appeal.
I. The first contention of appellant is, that the point where the steer entered upon the road was not uninclosed land, but, on the contrary, the same was inclosed. The basis for this contention depends on the following facts: At the point in question, the defendant's road runs north and south, and parallel with the Hannibal & St. Joseph railroad company; the defendant, being east of the Hannibal road, and their respective rights of way abutting each other. This would leave between the tracks a space of about one hundred feet. On the east side of defendant's road it had built a fence, and on the west side of the Hannibal road it had built a fence. Between the two roads there was no fence. At a public road crossing, from one-half to one mile north of the point in question, there were cattle guards on each of the roads, with which they connected the parallel fences by cross fences, so as to effect an inclosure at that point. But the evidence, as preserved in the bill of exceptions, does not show, as counsel for defendant assert, that south of said point there are any such cattle guards or cross fences connecting the two railroad fences.
Even, therefore, if the statute admitted of the construction contended for by appellant, which we do not now concede, the proof fails to show that the defendant's road was inclosed, or that the land between it and the other road was inclosed.
II. The remaining errors assigned by appellant turn principally upon the evidence. Assuming that the fence built by the Hannibal road should be treated as if built by itself, defendant contends that the evidence wholly fails to show that the steer entered upon the track of defendant through any defect in either fence. The plaintiff lived on the west side of the Hannibal road, only a short distance from it, and the point where his steer was injured. The uncontradicted evidence is that near his premises the fence, in two or three places, built by the Hannibal road, was in such wretched condition that for some time prior and up to the time of the injury, cattle passed through it onto the railroad tracks, and that plaintiff had to keep his cattle away from there to prevent their escaping onto the railroad. The plaintiff's steer was at home, and was seen by plaintiff, a short time before the injury, either the day or morning before. The steer was found badly mangled near defendant's track. Had there been no other proof in the case, I think this was sufficient to have warranted the court in submitting the issue to a jury. It is held in Gee v. Railway Company (80 Mo. 283), that it is not essential to a recovery under this statute that there should be direct evidence that the animal entered through the broken fence. It is a fact which may be gathered and inferred from all the surrounding circumstances of the case. From the fact that plaintiff's steer, when last seen, was near home, and on the side of the fence where this defect existed, and from the fact that plaintiff's cattle...
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