Reed v. Chicago & A. Ry. Co.

• Decision Date: 08 May 1905
• Citation: 112 Mo. App. 575,87 S.W. 65
• Court: Missouri Court of Appeals
• Parties: REED v. CHICAGO & A. RY. CO.

87 S.W. 65

112 Mo. App. 575

REED v. CHICAGO & A. RY. CO.

Kansas City Court of Appeals. Missouri.

May 8, 1905.

RAILROADS—DUTY TO FENCE TRACKS—INCLOSED AND UNINCLOSED LANDS — DIFFERENCES IN DUTY — PLEADING — VARIANCE — TRIAL—INSTRUCTIONS — PROXIMATE CAUSE—EVIDENCE —SUFFICIENCY—WITNESSES — CREDIBILITY— QUESTIONS FOR JURY.

1. The credibility as a witness of a party who admits being a "fixer of races," and admits having sworn falsely to his adversary regarding facts in the case, is a question exclusively for the jury, and for the trial judge in weighing the evidence upon motion for a new trial, and cannot be considered by the appellate court unless his testimony is opposed to reason or physical law.

2. In order to support a recovery for double damages for injury to a horse, under Rev. St. 1899, § 1105, requiring railroads to fence their tracks, and making them responsible for injuries to stock caused by failure to fence as required, the evidence must, either directly, or by facts and circumstances which rise above the plane of possibility or conjecture, show that the injury was caused by actual contact with defendant's train.

3. In an action for double damages for injury to a horse caused by defendant railroad's failure to fence its track as required by Rev. St. 1899, § 1105, evidence held sufficient to show that the horse was injured by defendant's train.

4. Rev. St. 1899, § 1105, requiring railroads to maintain lawful fences where their roads pass through or along "inclosed or cultivated fields, or uninclosed lands," imposes on a railroad a duty toward all stock owners to fence uninclosed lands, while the duty to fence inclosed lands is for the particular protection of an adjoining owner, who may waive the same so far as his own rights are concerned; and if he erects a lawful fence, in conformity to the requirements of Rev. St. 1899, § 3295, around his own lands, a stranger whose stock breaks through that fence, and is injured on the railroad; right of way by reason of its failure to maintain a fence, cannot recover from the railroad; but if he fails to maintain a lawful fence around his lands, so that they are uninclosed, the railroad becomes responsible for injuries to stock of a stranger which strays over the land of the adjoining owner, and from thence gets on to the railroad track, and is injured because of the railroad's failure to fence along its right of way.

5. A horse which travels down a road, and from thence into a lane, and from thence onto a railroad's right of way, without encountering a fence, goes upon the right of way where the same passes through "uninclosed lands," within the meaning of Rev. St. 1899, § 1105, requiring a railroad to fence its tracks where the same pass through uninclosed lands.

6. A variance between a petition under Rev. St. 1899, § 1105, requiring a railroad to maintain lawful fences through inclosed fields or uninclosed lands, in charging that the railroad at the place in question ran through "uninclosed" lands, and evidence showing that the animal injured came from grounds not adjoining the right of way, and reached the right of way by traveling along a public road, and thence into a lane, and thence onto the right of way, without encountering any intervening fence, was not material, and not ground for reversal, under Rev. St. 1899, § 865, forbidding the reversal of judgments in the absence of error materially affecting the merits.

7. In an action against a railroad for failure to fence its track as required by Rev. St. 1899, § 1105, a charge requiring the jury, in order to find for plaintiff, to believe that his horse got on defendant's railroad track at a point where the same ran through uninclosed lands, and that the track was not fenced at such point, and that the horse was struck and injured by defendant's engine, sufficiently required a finding that the failure to fence was the proximate cause of injury.

Appeal from Circuit Court, Lafayette County; Samuel Davis, Judge.

Action by Joseph P. Reed against the Chicago & Alton Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Richard Field and Scarritt, Griffith & Jones, for appellant. John Welborn and Chas. Lyons, for respondent.

JOHNSON, J.

Action to recover double damages, under section 1105, Rev. St. 1899, for injuries inflicted upon a horse, and which resulted in its death. A verdict was returned for plaintiff in the sum of $200, upon which judgment was entered for $400. Defendant appealed.

Complaint is made of the action of the trial court in refusing to instruct the jury to find for defendant. It is urged that, under the facts disclosed by the evidence, the inference that the injury to the horse resulted from a kick delivered by another horse is more reasonable than the conclusion attributing it to a collision with one of defendant's trains. Therefore it is said the jury was left to conjecture, and the rule is invoked that, "when the injury complained of may have resulted from either of two causes, for one of which the party sued is liable, and the other he is not, it is for the plaintiff to show with reasonable certainty that the cause for which the party is liable produced the result." Smart v. Kansas City, 91 Mo. App. 592.

The facts in evidence upon which the case was submitted to the jury may be stated as follows: Plaintiff, engaged in the horse-racing business, kept several horses—among them, the one injured—at the fair grounds, a short distance west of Higginsville. The grounds were inclosed by a high board fence. Immediately to the north was a public road running east and west, communication between which and the inclosed grounds being afforded by a gateway provided with a suitable gate. Several hundred feet north of the road, running parallel thereto, was defendant's railroad. A fence separated the public road from the intervening land, which was in cultivation and occupied by a Mr. Haeder. An open wagon road or lane, about 20 feet wide, ran north from the public road to defendant's tracks, and opened into defendant's right of way. No fence separated Haeder's land from defendant's right of way for a distance of about 350 feet, and it was possible for stock to pass from the public road into and along the lane, and from there onto defendant's right of way and Haeder's land, without encountering any fence to obstruct the way. On the evening of April 11, 1903, plaintiff turned three horses into the pasture contained within the circle of a half-mile race track in the fair grounds. There were several openings in the interior fences which inclosed the track. The gate in the outside fence was closed, but unlocked, and it was customary for persons having business in the grounds to use this gate. Early next morning, on going to the horses, plaintiff found them in the race-track pasture, where they were left the night before, but one of them had his left hind leg broken in two places. As the other two animals were unshod on their hind feet, plaintiff supposed that other horses kept in the fair-grounds stables had been turned into the pasture without his knowledge, and that one of these, shod behind, had kicked his horse, as the character of the wound indicated such a blow. This theory was supported by the presence of a number of hoof prints plainly appearing in the turf. Upon investigation, plaintiff learned that no other horses had been put into the pasture, but all of them were kept in the stables that night, and were found in their respective places the following day. Receiving information during the day from one of defendant's section foremen that horses had been found by him on defendant's right of way the night before, one of which was in a crippled condition, plaintiff, accompanied by the witness Fortner, made investigation along the tracks of defendant, and found at a point near the entrance of the lane to the right of way, to and across the main track of defendant's road, the hoof prints of horses. The injured horse was entirely unshod, and plaintiff claims he could identify some of the hoof prints as having been made by the feet of that animal. Blood also was...