Miller v. Chicago, M. & St. P. Ry. Co.

• Decision Date: 18 May 1914
• Docket Number: No. 11118.,11118.
• Citation: 180 Mo. App. 209,167 S.W. 1160
• Parties: MILLER v. CHICAGO, M. & ST. P. RY. CO.
• Court: Missouri Court of Appeals

167 S.W. 1160

180 Mo. A. 209

MILLER v. CHICAGO, M. & ST. P. RY. CO.

No. 11118.

Kansas City Court of Appeals. Missouri.

May 18, 1914.

1. RAILROADS (§ 441) — KILLING ANIMALS — INSUFFICIENT CATTLE GUARDS — BURDEN OF PROOF.

In an action against a railroad company for killing plaintiff's horse, alleged to have strayed onto the right of way by reason of a defective cattle guard, the burden is on plaintiff to show a breach by defendant of its statutory duty to provide a sufficient guard, and that such failure was the cause of the entry of the horse on the right of way.

2. RAILROADS (§ 411) — KILLING ANIMALS — CATTLE GUARD.

Rev. St. 1909, § 3145, requiring railroad companies to construct and maintain cattle guards sufficient to prevent horses from getting

on the right of way, does not impose on railroad companies the duty to maintain guards which will be an insurmountable barrier to horses under any and all circumstances, but only requires such guards as ordinarily will be sufficient to prevent horses from attempting to pass over them onto the right of way.

3. RAILROADS (§ 443) — KILLING STOCK — DEFECTIVE CATTLE GUARD.

That plaintiff's horse and two or three of its companions crossed defendant's cattle guard and went onto defendant's right of way was not of itself sufficient to make out a prima facie case of insufficiency of the guard, but such fact, in connection with proof of the size of the guard, the kind of timber of which it was made, and the distance apart at which the timbers were laid, might show that the guard was insufficient.

4. RAILROADS (§ 446) — CATTLE GUARD — SUFFICIENCY.

Where a cattle guard was made of pine timbers 10 feet long, 4 inches wide, and 2 inches thick, laid edgewise one inch apart, and with each plank beveled at the top so that it afforded a solid, though uneven, support for a horse or other animal attempting to pass over it, there being nothing to repel an animal except the serrated surface, whether it was ordinarily sufficient to prevent horses from passing over it was a question for the jury, though it was constructed in accordance with a standard plan adopted by a railroad roadmasters' association and in use on many great railroad systems.

5. RAILROADS (§ 446) — INJURY TO ANIMALS — CATTLE GUARD — EXPERT TESTIMONY.

Where a cattle guard was so constructed as to give solid and substantial support to animals attempting to cross it, and there was nothing to repel an animal except the serrated surface of the guard, no amount of opinion evidence or proof of the adoption of the plan of such guard would be sufficient to establish, as a matter of law, that it constituted a performance of the railroad company's statutory duty to construct and maintain guards sufficient to prevent horses from getting on the right of way, as required by Rev. St. 1909, § 3145.

Appeal from Circuit Court, Caldwell County; Arch B. Davis, Judge.

Action by Charles M. Miller against the Chicago, Milwaukee & St. Paul Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Fred S. Hudson, of Chillicothe, for appellant. D. E. Adams, of Hamilton, and O. J. Adams, of Kingston, for respondent.

JOHNSON, J.

This is an action for double damages under section 3145, Rev. St. 1909, for the killing of a horse by a train on defendant's railroad at a place in the country where the statute required defendant to fence and "to construct and maintain cattle guards sufficient to prevent horses * * * from getting on the railroad."

The petition alleges that the horse entered the right of way at a point two miles west of the station of Cowgill, where defendant had failed to maintain a lawful fence and "had insufficient cattle guards to prevent horses * * * from getting onto said right of way." The answer was a general denial. A trial of the issues resulted in a verdict and judgment for plaintiff, and the cause is here on the appeal of defendant.

On September 27, 1912, plaintiff's horse escaped in the night from a pasture and strayed on a public road with six or seven other horses to the railroad crossing in question. The railroad ran east and west through farming land, and the right of way was inclosed with lawful fences in good repair. There were cattle guards and wing fences on each side of the crossing which had been put in within 90 days and were in good repair. There is uncontradicted evidence introduced by defendant to the effect that the cattle guards were constructed in conformity with a standard plan adopted by the Roadmasters' Association of America and in use on many of the great railway systems. The guard was made of pine timbers, 10 feet long, 4 inches wide, and 2 inches thick, laid edgewise one inch apart, and with each plank beveled at the top so that the floor thus formed was in longitudinal ridges but afforded a solid, though uneven, support for a horse or other large animal attempting to pass over it. Defendant's witnesses claim that such a surface ordinarily will turn horses which are not exceptionally breachy nor completely panic-stricken. Under the standard...