Railway Company v. Ferguson

• Decision Date: 03 December 1892
• Citation: 20 S.W. 545,57 Ark. 16
• Parties: RAILWAY COMPANY v. FERGUSON
• Court: Arkansas Supreme Court

20 S.W. 545

57 Ark. 16

RAILWAY COMPANY v. FERGUSON

Supreme Court of Arkansas

December 3, 1892

Appeal from Hempstead Circuit Court, RUFUS D. HEARN, Judge.

Ferguson sued the St. Louis, Iron Mountain & Southern Railway Company for the killing of a colt worth $ 55. Ferguson testified that he was the owner of the colt in controversy, and that the same was worth $ 55; that, sometime in May, 1890, he was walking along defendant's track, a few miles south of Hope, within 100 yards of where his mare and colt were feeding; that a train came along and frightened the colt, and it ran into a wire fence near the track and cut its throat from which wound it died. Witness stated that the fence had been there about two or three years, and was one-half or one mile in length. Witness had never noticed said fence being repaired, and at the time of the accident it was in a very bad condition. It was not connected with the railroad at the ends and had several gaps in it at intermediate points. Stock had no trouble in getting on the inside between the fence and track at the ends and gaps. The colt was on the track, and the engineer of the train blew his whistle to frighten the colt off the track.

Two other witnesses testified as to the defective condition of the fence, and that the fence had been erected by defendant.

The following instruction, asked by plaintiff, was given, over defendant's objection:

"The jury are instructed that if you find from the evidence that the defendant, the St. Louis, Iron Mountain & Southern Railway Company, erected the fence the colt in controversy ran into, and that it so negligently and carelessly erected and maintained same by failing to connect the fence at the ends of same with the railroad track and by failing to keep same properly repaired, and that by reason of such neglect the colt in question was permitted to pass on the inside of said fence between the fence and railroad track, and while it was between the said track and fence, it was frightened by the train of said defendant and ran into said fence and had no other means of escape, and was killed by reason of running into same, you may find for the plaintiff."

The jury returned a verdict in favor of plaintiff for $ 55.00. A motion for a new trial was overruled, and defendant appealed.

Reversed and remanded.

C. B Moore and Dodge & Johnson for appellant.

The animal was not killed by the running of defendant's train. Mansf. Dig. sec. 5537. Railroads are required to keep a bell or whistle, and to use them at crossings, and for warning stock, etc. Ib sec. 5478. There is no law requiring railroads to fence their track; yet they have the right to fence their property. In the absence of a statute requiring it to fence its track, there is no legal obligation to do so 13 A. & E. R. Cas. 58; 1 Ib. 620; 22 Id. 589; 7 Id. 541; 47 Ark. 330. Nor is there any obligation on the railroad to maintain a fence or keep it in repair. The doctrine laid down in 36 Ark. 607 and 37 Id. 593 is conclusive of this case.

Jas. H. McCollum for appellee.

The injury was caused by the running of defendant's trains. Mansf. Dig. sec. 5537. It was caused by the negligent building and maintaining of the fence. 11 Exch. 784; 95 U.S. 439. It is lawful to permit stock to graze upon the commons. 37 Ark. 562; 46 Id. 207. The negligently constructed fence was the proximate cause of the accident. 16 Ark. 308. It was a trap or dead-fall for stock. 46 Ark. 207; 53 Id. 381; 54 Id. 209; 15 Am. Rep. 530; 2 Am. St. Rep. 213; Bish. Non-Cont. Law, sec. 415; 16 Ind. 314; 16 Am. & E. Enc. Law, p 389 and note.

BATTLE, J. Mansfield, J., dissented.

OPINION

BATTLE, J.

Appellant enclosed a part of its railway track and right of way with a wire fence. For three years the fence was permitted to stand without repairs. The result was, at the end of that time, it was in a very bad condition; there were several gaps in it; and it was not connected with the track at the ends. While it was in this condition the colt of appellee strayed on the right of way of appellant and upon the part of its railway track so enclosed; and an engineer of an approaching train, discovering it upon the track, sounded the alarm, frightened the colt, and it ran from the track against the wire fence, by which its throat was cut; and the colt died from the wound.

Was the appellant liable to the appellee for the loss occasioned by the failure to construct the fence so as to make it harmless to stock and keep the same in good repair?

A well established rule of law is, that the owner of private grounds is under no obligation to keep them in a safe condition for the benefit of trespassers or those who may go upon them uninvited, from motives of private convenience in no way connected with the owner, or from curiosity. He is under no obligation to fence or guard any wells, ditches, stone quarries, or other pitfalls or dangerous places on his unenclosed grounds, in order to protect animals straying thereon against injuries; and is not liable for the damages suffered because he failed to do so. Hughes v. H. & St. Jo R. Co. 66 Mo. 325; Clary v. Railroad Co. 14 Neb. 232; Leseman v. S. C. R. Co. 38 S.C. L. 413, 4 Rich. 413; Gilman v. S. C. & P. Ry. Co. 62 Iowa 299, 17 N.W. 520; 1 Thompson on Negligence, pp. 298, 303; 3 Lawson's Rights, Remedies and Practice, secs. 1149, 1151, and cases cited.

In St. L., I. M. & S. Ry. Co. v. Fairbairn, 48 Ark. 491, Chief Justice Cockrill, speaking for the court, said: "The appellee was injured by stepping into a cavity caused by a rotten plank in the appellant's platform at Bierne Station. The jury found the issues in his favor, and the question whether the appellee was lawfully on the platform at the time he was injured is the only one properly left for our consideration. If he was there merely from curiosity, or for his own convenience for the transaction of business in no way connected with the railway company, no relation existed between him and the company which imposed upon the latter the duty of exercising even ordinary care in maintaining a safe platform for his own use, and it is not liable for his injury."

Is an owner of private grounds under greater obligations to owners of live stock as to such stock? In K. C., S. & M. Ry Co. v. Kirksey, 48 Ark. 366, the court said: "The railroad's obligation as a carrier, or its duty to a person rightfully upon its track, are not coincident with the negative duty not to injure, unnecessarily, stock that wanders upon its right of way and track. It is held to a rigid observance of its public duties, but as to stock straying upon its right of way, its obligation is not different from that of other owners or occupants of real estate. * * * The statute has placed no obligation upon the railroad in that respect, and the rights and liabilities of the company and stock owner are governed by the common law. The company is not required to fence out the stock, and the stock owner enjoys the passive license of free pasturage upon its open premises as upon those of natural persons, without being held to accountability as a trespasser. * * * The technical wrong that the land owner suffers by the entry of another's stock is regarded as too slight to engage the attention of the law, is damnum absque injuria. But the privilege of entry and free pasturage is not a right which can be demanded and enforced--it is only an immunity from suit or punishment, and the company or other land owner is under no obligation to expend money or labor in preparing the land for...