Miller v. Chicago, Milwaukee and St. Paul Railway Company
| Decision Date | 18 May 1914 |
| Parties | CHARLES M. MILLER, Respondent, v. CHICAGO, MILWAUKEE AND ST. PAUL RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Caldwell Circuit Court.--Hon. A. B. Davis, Judge.
AFFIRMED.
Judgment affirmed.
Fred S Hudson for appellant.
(1) The company has discharged its full duty under the law when it erects and maintains in good repair a cattle guard that is as perfect and well adapted to the purpose of turning stock as it is practicable to make it, taking into consideration the safety of the traveling public and the safe and prudent operation of the road. Railroad v. Busick, 86 S.W 675; Railroad v. Goset, 68 S.W. 879; Railroad v Russel, 110 S.W. 318; Cole v. Railroad, 47 Mo.App. 624; Jones v. Railroad, 59 Mo.App. 137; Sappington v. Railroad, 95 Mo.App. 392; Deitrich v. Railroad, 89 Mo.App. 36; Timins v. Railroad, 72 Iowa 94; Barnhart v. Railroad, 97 Iowa 654. (2) No negligence or wilfulness is charged to defendant and the evidence given by the witnesses of both plaintiff and defendant was that the fences and cattle guards were in no way out of repair or defective; hence no evidence upon which to base a verdict and judgment. R. S. 1909, Sec. 3145; Lynn v. Railroad, 164 Mo.App. 450.
D. E. Adams and O. J. Adams for respondent.
This is an action for double damages under section 3145, Revised Statutes 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 on to 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 enclosed 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 ninety 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 Roadmaster's 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 construction the pit formerly dug under each cattle guard is discarded on account of the danger to passing trains which sometimes were derailed by animals caught and held in such pits, and from the burning of inflammable debris which had accumulated in them.
The evidence of plaintiff and much of the evidence of defendant tends to show that the horse entered the right of way over the east cattle guard and was struck by a passing eastbound train some distance east of the guard. The engineer testified that the horse was struck in the public road and carried over the cattle guard but from all the evidence the inference is very strong that he is mistaken and has confused plaintiff's horse with another that was struck just before the locomotive reached the cattle guard.
There is a sharp dispute in the evidence over the question of whether the horse went over the cattle guard under no stronger motive than to graze on the right of way or under the impulse of extreme terror produced by the approaching train. This dispute was settled by the verdict in favor of plaintiff and for the purposes of the demurrer to the evidence which defendant argues should have been given, we must assume, since there is substantial evidence to that effect, that this horse and two or three others, attracted by the grass in the right of way, crossed over the guard to browse sometime before the arrival of the train.
There is no charge that the killing of the horse was negligent or willful, and the only question for our solution is whether or not the evidence of plaintiff will support a reasonable inference that the cattle guard was insufficient within the statutory meaning of that term. The burden of proof is upon plaintiff to show that a breach by defendant of such statutory duty was the cause of the entry of his horse upon the right of way. [Lynn v. Railroad, 164 Mo.App. 445.] Such proof might consist entirely of circumstantial evidence but without an affirmative showing that the cattle guard was insufficient to turn horses plaintiff could not recover. The statute did not impose the duty upon defendant of maintaining a cattle guard that would be an insurmountable barrier to horses under any and all circumstances. It is not intended that a railroad company shall insure its cattle guards to be stock proof. Regard must be had for the safety...
To continue reading
Request your trial