Nashville, C. & St. L. Ry. Co. v. Russell

• Citation: 110 S.W. 317,129 Ky. 14
• Parties: NASHVILLE, C. & ST. L. RY. CO. v. RUSSELL.
• Decision Date: 12 May 1908
• Court: Court of Appeals of Kentucky

110 S.W. 317

129 Ky. 14

NASHVILLE, C. & ST. L. RY. CO. v. RUSSELL.

Court of Appeals of Kentucky.

May 12, 1908

Appeal from Circuit Court, Marshall County.

"To be officially reported."

Action by T. E. Russell against the Nashville, Chattanooga & St Louis Railway Company for the killing of stock. From a judgment for plaintiff, defendant appeals. Affirmed.

Wheeler Hughes & Berry, for appellant.

Oliver Oliver & McGregor, for appellee.

CARROLL J.

The principal questions in this case are whether or not the appellant company erected and maintained at a public road crossing on its line of railway at a point near Hardin in Marshall county, Ky. a sufficient cattle guard within the meaning of the statute to entitle it to a verdict under direction of the court, and whether or not the trial court properly instructed the jury. The action was brought to recover damages for the value of stock killed by one of appellant's trains, and upon a trial there was a verdict and judgment for appellee.

The stock killed had passed over a cattle guard, and were on the right of way at a point where they could not escape, and it is not contended that the trainmen were guilty of any negligence; so that the entire case turns upon the proposition whether or not the cattle guard was erected and maintained in the manner required by the statute, and reasonably sufficient to prevent stock from going from the public road on to the right of way where they were killed. The cattle guard in question was eight feet square, made of iron plates attached together and placed on the ties, and on the surface of the iron at spaces of a few inches apart there were sharp pointed projections also made of iron, intended to be so arranged that an animal in walking across would necessarily step on the pointed iron, thereby hurting or injuring its feet. This particular cattle guard is known as "Cook's Standard," and is in general use on the line of appellant's railroad, and is used by other railroad companies, and was shown by the evidence of witnesses for appellant to be one of the best and most approved styles of cattle guards in general use. There was evidence for appellee tending to show that a number of the sharp projecting points had been bent, and that the ties upon which the iron plate was laid were embedded in the ground, so that the iron was almost level with the top of the earth, and that cattle and horses habitually passed over it. As all of the evidence introduced on the trial was to the effect that the cattle guard was a practical one, of approved pattern and in general use, appellant insists that it fully complied with the statute, although cattle may have walked across it; the argument being that when a cattle guard, the utility of which has been tested and approved by railroads, is erected and maintained, the company has discharged the full measure of its duty, and cannot be held liable, although it may not be sufficient to prevent stock from passing over it.

It is not necessary nor indeed proper that we should express an opinion as to the kind of cattle guard that should be erected and maintained. But the fact that the cattle guard was the same as that in general use on the line of appellant's railroad, and also on other roads, is not conclusive evidence that it was a sufficient cattle guard within the meaning of section 1793 of the Kentucky Statutes, which reads in part as follows: "All corporations and persons owning or controlling and operating railroads as aforesaid shall erect and maintain cattle guards at all terminal points of fences constructed along their lines." This statute does not undertake to prescribe the character of cattle guards that shall be used, but manifestly the intention was that it should be such a one as is reasonably sufficient to prevent cattle from crossing it, otherwise it would be of...