Rinehart v. Kansas City Southern Ry. Co.

• Decision Date: 01 February 1904
• Citation: 80 S.W. 910,126 Mo. App. 446
• Court: Missouri Court of Appeals
• Parties: RINEHART v. KANSAS CITY SOUTHERN RY. CO.<SMALL><SUP>*</SUP></SMALL>

80 S.W. 910

126 Mo. App. 446

RINEHART v. KANSAS CITY SOUTHERN RY. CO.^*

Kansas City Court of Appeals. Missouri.

February 1, 1904.

RAILROADS—FAILURE TO FENCE—INJURY TO CATTLE.

1. Under the express provisions of Rev. St. 1899, § 4781 the provisions of the stock law (sections 4777-4781, Rev. St. 1899) do not lessen the obligations of a railroad under section 1105, requiring every railroad to maintain fences on the sides of its road, where the same passes through or along cultivated lands or uninclosed fields.

2. Rev. St. 1899, § 1105, requires a railroad to maintain fences along its tracks, where they pass through or along cultivated or uninclosed lands, and makes it liable for any injuries to cattle by reason of a failure to maintain such a fence; and section 3295 provides that all fences shall be at least 4½ feet high. Held, that where trespassing cattle break into a field through a fence, and pass from there onto the tracks of a railroad company through a fence maintained by the railroad, insufficient under section 1105, and are injured, the railroad is liable, though the fence through which they broke into the field was insufficient, under section 3295.

3. While a landowner adjoining a railroad may by agreement relieve it of its statutory duty to maintain fences, he cannot waive the performance of such duty as to third persons whose stock may enter his lands through an unlawful fence, and pass from there onto the railroad.

Appeal from Circuit Court, Vernon County; J. B. Johnson, Special Judge.

Action by S. J. Rinehart against the Kansas City Southern Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Lathrop, Morrow, Fox & Moore, Cyrus Crane, and J. P. Gilmore, for appellant. W. H. Hallett, for respondent.

SMITH, P. J.

This is an action under the provisions of section 1105, Rev. St. 1899, to recover double damages for the killing of plaintiff's colt by defendant's engine and cars. The petition alleges that "said animal went upon the railroad of defendant, and was killed as aforesaid, at a point in Henry township, Vernon county, Mo., where said railroad passes through, along, and adjoining uninclosed cultivated land; that at the point where said animal went upon said railroad the defendant, on and before said date, failed to erect and maintain lawful fences on the sides of its road in this, to wit: At the point where said animal went upon said railroad a gate through which said animal passed was standing open, and had been so standing open for a long time prior to the 25th day of December, 1901; the gate being so out of repair at said time, and long prior thereto, that it could not be closed."

The plaintiff's evidence tended to prove that the colt sued for escaped, with other horses, in the village of Richards; that it traveled about two miles upon the public highway, passed through an open gate into a 40-acre field of one Kaufman, and from thence through defendant's open right of way gate onto the defendant's right of way, where it was run over and killed by the engine and cars of the defendant; that both the gate through which the colt passed into Kaufman's field and the defendant's right of way gate through which it passed out of Kaufman's field onto the right of way were not only open on the day of the injury, but that they had been continuously open for several days and weeks prior thereto; that the defendant's right of way gate, through which it passed onto the right of way, was defective, in that the posts were spread apart so that there was a space of about a foot between the gate and the post to which it was intended to be latched or hooked, even when the gate was closed, and that it had been in this condition for something like a year; and that Kaufman's outside gate, through which the colt passed, was only four feet high, so, when closed, the fence of which it was a part was not a lawful fence. Rev. St. 1899, § 3295.

Defendant offered testimony tending to prove that Kaufman's gate had been closed at about 4 o'clock in the afternoon of the 24th day of December, 1901, and that the right of way gate was closed by being tied with a wire from two to five days prior to the day on which plaintiff's colt was killed. Defendant's evidence further tended to prove that plaintiff resided in the village of Richards, and about 2½ miles from the point on defendant's roadway where the colt entered Kaufman's field and was killed, and between which points there were several tracts of land belonging to different owners, none of which were owned by plaintiff, nor in none of which he (plaintiff) had any express or implied right to have his colt, and, further, that on the evening of the day preceding that of the accident the gate opening into Kaufman's field had been closed by him, and that defendant's section foreman had closed the right of way gate between two and five days before the accident.

The question which we are obliged to decide is whether or not, on the evidence tending to establish the facts as we have just stated them, the plaintiff was entitled to a submission of the case to the jury. It is the defendant's contention that since the plaintiff was not an adjoining owner or proprietor, within the meaning of the statute requiring railroad companies to fence their right of way through inclosed lands, he was not entitled to recover; and in support of this contention it cites and relies on Ferris v. Railway, 30 Mo. App. 122. In the course of the opinion delivered in the case just cited it is said that the "evidence is conclusive that the plaintiff was not an adjoining landowner, nor a next adjoining owner. In fact, it stands conceded that the field from which the mare strayed was four miles in a direct line from the defendant's track; the land of a number of other proprietors intervening. It does not appear that the mare was in the field adjoining the railroad right of way, or in the field next adjoining, by...