Rinehart v. Kansas City Southern Railway Company
| Decision Date | 29 May 1907 |
| Parties | RINEHART v. KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant |
| Court | Missouri Supreme Court |
Transferred from Kansas City Court of Appeals.
Affirmed.
Lathrop Morrow, Fox & Moore, Cyrus Crane and J. P. Gilmore for appellant.
(1) Plaintiff was not an adjoining owner within the meaning or protection of the statute requiring railroads to fence their right of way through inclosed lands and cannot, therefore recover. Ferris v. Railroad, 30 Mo.App. 122; Geiser v. Railroad, 61 Mo.App. 459; Railroad v. Hollingsworth (Tex.), 68 S.W. 724; Railroad v. Huffman (Tex.), 71 S.W. 779. (2) Kaufman, the adjoining landowner, was entirely satisfied with the fence and gate along the right of way, and with its being open (if such were true, which we deny) and plaintiff, therefore, could not complain of any defect in the fence or of the gate being open. Ells v. Railroad, 48 Mo. 231; Busby v. Railroad, 81 Mo. 49; Harrington v. Railroad, 71 Mo. 384; Madison v. Railroad, 60 Mo.App. 599.
W. H. Hallett for respondent.
(1) A railroad company can not, in an action for killing stock, avail itself of the fact that the stock came upon its right of way over the premises of an adjoining proprietor unless such premises were inclosed by a lawful fence, as the statute requiring railroad corporations to erect and maintain lawful fences on the sides of their railroads is not a provision for the exclusive benefit of the adjoining landowners, but is a police regulation for the benefit of the traveling public and incidentally for the protecton of all stock which comes upon the road without first becoming trespassers and because of the failure of the railroad company to erect and maintain lawful fences. Kaes v. Railroad, 6 Mo.App. 397; Carpenter v. Railroad, 25 Mo.App. 110; Smith v. Railroad, 25 Mo.App. 113; Emerson v. Railroad, 35 Mo.App. 621; Dean v. Railroad, 54 Mo.App. 647; Trice v. Railroad, 49 Mo. 438; Berry v. Railroad, 65 Mo. 172; Harrington v. Railroad, 71 Mo. 344; Peddicord v. Railroad, 85 Mo. 160. (2) When a fence is shown to have been defective at the time the animal went upon the track through it, the inference arises that the defendant, upon whom devolved the duty, was not maintaining a lawful fence. And if the time such fence remained defective is material, it is a matter of defense to be invoked by the defendant. Busby v. Railroad, 81 Mo. 47; Davis v. Railroad, 19 Mo.App. 430; Hamilton v. Railroad, 87 Mo. 85.
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 sec. 1105, Revised Statutes 1899, 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, Missouri, on December 25, 1901; that they went about two and one-half miles along the public highway and passed through an open gate into a forty-acre field of one Kaufman and from there through an open gate, at a farm crossing, onto defendant's right of way, and the colt 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 one to twelve 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 forty dollars.
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 that 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; and 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 four o'clock p. m., December 24, 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 forty dollars."
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 one to seven, 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.
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 two and one-half or three 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.
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 forty dollars.
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, but the cause was certified to this court under the Constitution, because the opinion is in conflict with the opinion of the St. Louis Court of Appeals in the case of Ferris v. Railroad, 30 Mo.App. 122.
I. The first point presented by defendant for our consideration is the ruling of the trial court...
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