Midland Valley R. Co. v. Bryant
| Decision Date | 05 April 1913 |
| Citation | 131 P. 678,37 Okla. 206,1913 OK 231 |
| Parties | MIDLAND VALLEY R. CO. v. BRYANT. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Section 1389, Comp. Laws 1909, making it the duty of railroad companies to fence their roads, except at public highways and stations, with a good and lawful fence, contemplates the erection of wing fences and cattle guards at public highway crossings.
The purpose of the statute is to prevent the intrusion of domestic animals upon the right of way, and this can only be accomplished by wing fences and cattle guards on either side of the crossings, as well as by fencing the sides of the right of way.
The only evidence of the condition of certain cattle guards over which it was claimed plaintiff's mules had passed was that said guards were "steel cattle guards"; that they were the most improved and approved pattern in general use by railroads in this country, and were properly put in and in good condition. The evidence further showed that plaintiff's mules, in some way not disclosed, passed over said guards, and on other occasions, the dates of which do not appear, horses and mules had crossed over them (the condition of the guards at the times not being shown). Held, no evidence of negligence, and that the facts were not such as would authorize the jury to infer a neglect on the part of the railroad company to perform a duty imposed by statute.
The duty owing by train operatives to animals trespassing upon a railroad track, fenced as required by statute, is to exercise ordinary care to avoid injury after their presence and peril are discovered.
Commissioners' Opinion, Division No. 1. Error from Osage County Court; C. T Bennett, Judge.
Action by Charles Amos Bryant against the Midland Valley Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded.
Edgar A. de Meules and Sol H. Kauffman, both of Muskogee, for plaintiff in error.
Grinstead Mason & Scott, of Pawhuska, for defendant in error.
It is urged with great earnestness by counsel for plaintiff in error that the statute of this state, requiring railroads to fence their right of way, does not require the construction of cattle guards at public crossings. Section 1389, Comp Laws 1909, makes it the duty of every person or corporation owning or operating any railroad in this state to fence its road, except at public highway crossings and station grounds with a good and lawful fence. A fence is defined to be: "An inclosure about a field or other place, or about any object; especially, an inclosing structure of wood, iron or other material, intended to prevent intrusion from without or straying from within." Webster's International Dictionary. Public travel and convenience make necessary the exception that the sides of the right of way be not fenced at public highway crossings; but this does not relieve from the duty to inclose by wing fences and cattle guards, or in some other proper manner, the right of way on each side of such public highway crossing that the object of the statute may be accomplished. The statute is one not alone for the benefit of owners of domestic animals, whether confined in adjoining inclosures or at large, but is also intended to furnish a means of reducing to a minimum the danger to both passengers and employés from collisions with trespassing animals, and at the same time to better enable the railroad company to discharge its duty as a common carrier. Wait v. Bennington & R. R. Co., 61 Vt. 268, 17 A. 284; Yazoo & M. V. R. Co. v. Harrington, 85 Miss. 366, 37 So. 1016, 3 Ann. Cas. 181. To require the fencing of the sides but not the ends of the right of way would but partially accomplish this purpose, and, where the entry was effected at such ends or crossings, would in many instances increase instead of lessen the dangers sought to be avoided.
As said in Elliott on Railroads (2d Ed.) § 1198: "The true test, it seems to us, for determining whether a cattle guard should be erected at any particular point is whether the company is bound to fence at that point." In International & G. N. R. Co. v. Searight, 8 Tex. Civ. App. 593, 28 S.W. 39, the court in passing upon this question said: Patrie v. Oregon Short-Line R. Co., 6 Idaho, 448, 56 P. 82; Toledo, St. L. & K. C. R. Co. v. Franklin, 53 Ill.App. 632; Evansville & C. R. Co. v. Barbee, 74 Ind. 169; Grand Rapids & I. R. Co. v. Jones, 81 Ind. 523; Wabash, St. L. & P. Ry. Co. v. Tretts, 96 Ind. 450; Elliott on Railroads (2d Ed.) § 1198. Again, in Elliott on Railroads, § 1199, the author notes: "The duty rests upon the company to protect its track for the full width of its right of way, and this duty must be discharged by the erection of proper cattle guards and wing fences."
While our statute requiring railroads to fence their right of ways differs slightly from that of many of the states to which our attention has been called, it cannot reasonably be said that there is any distinction in the object of the different statutes or the duty attempted to be imposed.
It is next urged that there is no evidence of defective cattle guards. On the morning following the accident, the plaintiff discovered mule tracks just over the crossing or cattle guards, and testified that his mules entered defendant company's right of way over the cattle guards, although unseen by him. Plaintiff further testified that the guards were "steel cattle guards." He further testified that other horses and mules had crossed over said guards. The general superintendent of the defendant company testified that the cattle guards were the most improved and approved cattle guards in general use on railroads in this country were properly installed and in good condition. This was all the testimony touching the character or repair of the cattle guards. The fact that plaintiff's mules entered the right of way through the cattle guards, or that plaintiff had known of mules or horses crossing said guards, even though the time the other mules and horses crossed said guards, and their condition at the time had been shown (which was not attempted), was not alone sufficient to entitle the plaintiff to recover. The statute requiring railroad companies to fence their roads does not exact that a railroad cattle guard, to be sufficient, must be so constructed and maintained as to interpose an absolutely unsurmountable and impassable barrier against the encroachment of stock, without exception and under all conditions. It cannot be said that a railroad company is an insurer of the efficacy of its cattle guards under every circumstance, such as against frightened or breachy animals. On the contrary, a railroad company has discharged its duty when it installs and keeps in good repair such guards as are of the most improved and approved kind in general use by railroads. Smead v. Lake S. & M. S. Ry. Co., 58 Mich. 201, 24 N.W. 761; Choctaw & M. R. Co. v. Goset, 70 Ark. 431, 68 S.W. 879; Choctaw & M. R. Co. v. Vosburg et al., 71 Ark. 232, 72 S.W. 574; St. Louis, M. & S.E. R. Co. v. Busick, 74 Ark. 589, 86 S.W. 676; Chicago, B. & Q. R. Co. v. Farrelly, 3 Ill.App. 60; Barnhart v. Chicago, M. & St. P. Ry. Co., 97 Iowa, 654, 66 N.W. 902; Cole v. Chicago, B. & Q. Ry. Co., 47 Mo.App. 624; Jones v. Chicago, B. & K. C. Ry. Co., 59 Mo.App. 137; Wait v. Bennington & R. R. Co., 61 Vt. 268, 17 A. 284; Lewis' Sutherland Statutory Construction, § 721. The jury, therefore, could not infer the insufficiency of the cattle guard from the fact that the mules had gone over it, and other mules and horses at other times had passed over it. Had there been other evidence tending to show the size, length, depth, and manner of construction of the guards, from which the jury could for themselves have determined their sufficiency, the testimony that stock had crossed over them would have been competent as...
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