Railway Company v. Knott

• Decision Date: 18 April 1891
• Citation: 16 S.W. 9,54 Ark. 424
• Parties: RAILWAY COMPANY v. KNOTT
• Court: Arkansas Supreme Court

16 S.W. 9

54 Ark. 424

RAILWAY COMPANY v. KNOTT

Supreme Court of Arkansas

April 18, 1891

APPEAL from Lafayette Circuit Court, CHARLES E. MITCHEL, Judge.

Appeal from a judgment for the recovery of damages for a trespass committed by the employees of defendant, the St. Louis Arkansas and Texas Railway Company, "by throwing down the fences on and around plaintiff's farm, both on and off the right of way." The facts are stated in the opinion.

Montgomery & Moore and Sam H. West for appellant.

The injuries or trespasses complained of were committed by Holman & Son, sub-contractors, who were not servants of the company. A railroad company is not liable for injuries occasioned by the trespass or negligence of the servants or laborers of an independent contractor. The mere fact that the work of construction is to be done by a contractor, under the direction and to the satisfaction of a superintendent employed by the company is not such a reservation of control as to render the company liable for the negligent execution of the work by the contractor or his servants. 2 Wood, Ry Law, 1008-9; 1 Rorer on Rys., 468; Wood, Mast. & S., 602, et seq; 58 N.H. 52; 4 Exch., 254; 35 N.J.L. 17; 80 Penn. St 102; 38 Barb. (N. Y.), 653; 36 Mo. 202; 61 N.Y. 180; 40 Mo.App. , 456; 84 Mo. 117; 13 S.W. 333; Story on Agency, sec 454, and note; Mecham, Agency, sec. 747; Cooley on Torts (2d ed.), 643. The entry on the land was lawful, and the evidence shows that the trespass was not authorized or assented to by the railroad or its engineer. 30 A. & E. R. Cases, 384; 29 id., 590, and notes; 15 id., 100.

OPINION

MANSFIELD, J.

At the time of the injury complained of the plaintiff held the lands on which the alleged trespass was committed as the tenant of John Taylor. The latter had previously granted to the defendant company a right of way over the lands for its road. Whether such grant was made before or after the lease to the plaintiff, is not shown by either the pleadings or the evidence. The lease was for only one year, and was probably by parol. But if it was prior to the defendant's purchase of the right of way, and the plaintiff was in the actual possession of the lands at the time of such purchase, then the defendant was charged with notice of his lease-hold interest, and took the right of way subject thereto. Ullman v. Hannibal R. Co., 67 Mo. 118; McKinley v. Chicago Ry. Co., 40 Mo.App. 449; Turman v. Bell, ante, 54 Ark. 273. In that event the defendant had no right of entry as against the plaintiff, unless it was acquired by contract with him, or by proceedings under the statute to condemn to the use of the road his estate as lessee in so much of the land as was to be occupied by the right of way. And if the company's contractors by its direction entered upon the lands before it had thus acquired a complete right to do so, it was a trespasser jointly with them and liable to the plaintiff as such. Ullman v. Hannibal R. Co., 67 Mo. 118, supra. But the record discloses no contest as to the right of way, and this action was apparently not for a wrongful entry on the lands, nor for any injury resulting directly from the work of constructing the roadbed. The complaint alleges that the damages sued for resulted from the act of Holman & Son in throwing down and leaving down the fencing of the Taylor farm "both on and off of the right of way of said * * railroad," thus causing the destruction of the plaintiff's crops. The language quoted would seem to recognize the existence of a right of way belonging to the defendant; and on the trial the plaintiff in effect disclaimed any right of action for an injury suffered by the work of grading the road through his fields. There is no express allegation of a wrongful entry, and the only controversy between the parties in the court below, as indicated by the evidence on both sides, was as to the liability of the defendant for damages caused by the wrongful acts or negligence of Holman & Son.

The complaint states that the fencing was left down "both on and off the right of way." If the defendant had acquired the absolute right to construct its road through the farm then it was not its duty to keep the fencing up on the right of way unless it had bound itself to do so. Cockrum v. Williamson, 53 Ark. 131, 13 S.W. 592; Clark v. Hannibal R. Co., 36 Mo. 202. As to the fencing off the right of way, the work contracted for did not, so far as shown by the evidence,...