Rinehart v. Kansas City Southern Ry. Co.

• Decision Date: 29 May 1907
• Citation: 102 S.W. 958,204 Mo. 269
• Parties: RINEHART v. KANSAS CITY SOUTHERN RY. CO.
• Court: Missouri Supreme Court

102 S.W. 958

204 Mo. 269

RINEHART v. KANSAS CITY SOUTHERN RY. CO.

Supreme Court of Missouri, First Division.

May 29, 1907

Appeal from Circuit Court, Vernon County; H. C. Timmonds, Judge.

Action by S. J. Rinehart against the Kansas City Southern Railway Company. There was a judgment of the St. Louis Court of Appeals (80 S.W. 910), affirming a judgment for plaintiff and the cause was certified to the Supreme Court. Affirmed.

Where in an action against a railway company for killing a colt entering on its right of way through a defective gate in the right of way fence, the evidence of plaintiff showed that he owned the colt; that it passed through an open gate in the right of way fence onto the railroad track, and was struck by a train and killed; and that the company originally erected a proper fence, and gate, but permitted the gate to remain out of repair for the greater portion of a month preceding the killing-a prima facie case for plaintiff was established notwithstanding substantial contradictory evidence was introduced by the company.

This is an action which was instituted in the circuit court of Vernon county, by the plaintiff against the defendant seeking to recover double damages, under the provisions of section 1105, Rev. St. 1899 [Ann. St. 1906, p. 945], for the alleged killing of plaintiff's colt by one of defendant's engines and cars, on or about December 25, 1901. Plaintiff introduced evidence, at the trial, tending to prove that he was the owner of the colt at the time it was killed; that it and other horses escaped from his son while being taken to water, in the town of Richards, Mo., on December 25, 1901; that they went about 2 1/2 miles along the public highway and passed through an open gate into a 40-acre field of one Kaufman, and from there through an open gate, at a farm crossing, onto defendant's right of way, and was there struck and killed by one of defendant's engines and train of cars; that said gate had been out of repair and open from 1 to 12 months prior to the killing; that the gate through which the colt passed into the field of Kaufman was open on the day of the injury, and had been several days and weeks prior thereto; that the Kaufman gate was not a lawful gate; and that the colt was worth $40. Defendant's evidence tended to prove that there were several intervening tracts of land lying between plaintiff's home and the point on defendant's right of way where the colt was killed, which belonged to different owners, and in order to reach that point it would be necessary for the colt to trespass upon and pass over all of said lands; that the defendant and Kaufman had an arrangement or agreement by which the gate in the right of way fence, at the farm crossing, and its condition, was satisfactory to said Kaufman; that the gate was closed and securely fastened four or five days prior to the date on which the colt was killed; and that at 4 o'clock p. m., December 24th, the day before the accident, Kaufman closed and securely fastened the gate leading from the public highway into his field. Defendant demurred at the close of plaintiff's case in chief, and again at the close of all of the evidence in the cause, each of which was by the court overruled, and defendant duly excepted.

The court then, over defendant's objections, instructed the jury for plaintiff as follows: " (1) The court instructs the jury that if they find from the evidence that plaintiff's colt went upon defendant's track, and was struck and killed by defendant's train, by reason of the failure of defendant to construct and maintain a lawful fence at a point on its railroad where by law it was required to fence, and that said colt did not pass over a lawful fence in getting to the railroad, then and in that case the verdict should be for the plaintiff in such sum as you may believe from the evidence to have been the market value of the colt at the time it was killed, not to exceed $40. (2) The court instructs the jury that any understanding or agreement defendant may have had with Kaufman, to the effect that defendant need not maintain a lawful fence along their road through his land, is no defense to this case, unless said Kaufman's field was inclosed with a lawful fence." To the action of the court in giving said instructions, defendant duly excepted.

The defendant asked the court to give instructions numbered from 1 to 7, inclusive, and the court gave the first four, but refused to give 5, 6, and 7, as asked, to which action of the court the defendant duly excepted. The court modified instructions 5 and 6, and gave them as modified, to which action of the court defendant duly excepted. Said instructions 5, 6, and 7, as asked, are as follows: " (5) The court declares the law to be in this case that the duty to fence its road by a railroad company is for the benefit of the adjoining landowner, and that an adjoining landowner through and along whose land a railroad passes may waive the right to have such fences and gates as are prescribed by the statutes, or agree between themselves to dispense with same; and if you believe from the evidence that the adjoining landowner, Arthur Kaufman, did so waive his right in this instance, and that the plaintiff's colt was trespassing in said Kaufman's field, and was in such field without any consent from said Kaufman, then your verdict will be for the defendant. (6) If the jury believe from the evidence that the defendant's foreman closed the gate on its right of way from two to five days before the 25th day of December, 1901, and that he closed said gate whenever found open by him, then your verdict will be for the defendant. (7) The court instructs the jury that if they believe from the evidence that the plaintiff was not an adjoining landowner nor a next adjoining landowner to the defendant's railroad, and that plaintiff's colt strayed from his place or field some 2 1/2 or 3 miles from the railroad, and point at which it was killed, if it was so killed, and that in reaching said point on said railroad said colt passed over and along the lands of several intervening proprietors before reaching same, then plaintiff cannot recover against the defendant on the ground of its failure, if there was such a failure, to maintain a sufficient and legal gate at and along Kaufman's field, and your verdict will be for the defendant."

And instructions numbered 5 and 6, as modified and given by the court, are as follows: " (5) The court declares it to be the law in this case that the duty to fence its railroad by a railroad company is for the benefit of the adjoining landowner, and that an adjoining landowner through or along whose land a railroad passes may waive the right to have such fences and gates as are prescribed by the statute, or agree between themselves to dispense with same; and if you believe from the evidence that the adjoining landowner, Arthur Kaufman, did so waive his right in this instance, and that plaintiff's colt was trespassing in said Kaufman's field, by going over or through a legal fence, and was in such field without any consent from said Kaufman, then your verdict will be for the defendant. (6) If the jury believe from the evidence that defendant's foreman closed the gate on its right of way from two to five days before the 25th day of December, 1901, and that he closed said gate whenever found open by him, and that he used due care and diligence in looking after said gate to discover when it was open, then your verdict will be for the defendant."

The cause was submitted to the jury under the evidence and instructions, and they found for plaintiff, and found his damage at the sum of $40. In due time defendant filed its motions for a new trial and in arrest of judgment, which were, by the court, overruled, and in due time defendant appealed to the Kansas City Court of Appeals. There the judgment of the circuit court was affirmed,...