Sampson v. Atchison, Topeka & Santa Fe Railway Company
| Decision Date | 26 February 1926 |
| Docket Number | 25365 |
| Citation | 281 S.W. 52,312 Mo. 666 |
| Parties | WILLIAM SAMPSON v. ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant |
| Court | Missouri Supreme Court |
Transferred from Kansas City Court of Appeals.
Affirmed.
Cyrus Crane, Geo. J. Mersereau, John H. Lathrop, Winston H. Woodson and Charles E. Murrell for appellant.
On the undisputed evidence the plaintiff's cattle having entered the right-of-way at the public crossing and at a point where the railway company was not obligated to maintain a wing fence and cattle-guards, the defendant was not liable, and its demurrer to the plaintiff's evidence and its demurrer at the close of all the evidence should have been sustained. R. S. 1919, sec. 9948; Edie & Sons v. Ry. Co., 133 Mo.App. 9; Gilpin v. Ry. Co., 77 S.W. 118; Gilpin v. Ry. Co., 197 Mo. 319; Pearson v. Ry Co., 33 Mo.App. 543; Cororan v. Railroad, 138 Mo.App. 408; Hurd v. Chappell, 91 Mo.App. 317; Redmond v. Ry. Co., 104 Mo.App. 651; Swearingen v. Railroad Co., 64 Mo. 73; Robertson v. Railroad Co., 64 Mo. 412; Webster v. Ry. Co., 57 Mo.App 451; Kirkpatrick v. Railroad, 120 Mo.App. 416; Acord v. Railroad Co., 113 Mo.App. 84; Sowders v. Ry. Co., 104 S.W. 1122; Worley v. Ry. Co., 135 Mo.App. 461; Dorsey v. Railroad, 175 Mo.App. 150; Rucker v. Lusk, 221 S.W. 393; Francis v. Bush, 226 S.W. 57.
Campbell & Ellison for respondent.
Section 9948 requires cattle-guards to be maintained at all places where right-of-way fences are required, "and also to construct and maintain cattle-guards where fences are required sufficient to prevent horses, etc., from getting on the railroad." The court could not as a matter of law declare cattle-guards were not required to be maintained at the overhead bridges, or between them and the switch 860 to 1,500 feet to the east "sufficient to prevent cattle" from going on the track. Miller v. Company, 180 Mo.App. 209; Boucher v. Wabash, 199 S.W. 742. The court in Worley v. Railroad, 135 Mo.App. 464, discuss the meaning of "entered upon the right-of-way" and hold that if animals go upon the track at a public road crossing and wander along the tracks and are killed at a place where the statute requires fences and cattle-guards the railroad is responsible "because the animals got to the place on the right-of-way where they were killed by reason of the fact that the absence of cattle-guards enabled them to do so." The Worley case is cited with approval in Raindage v. Wabash, 206 S.W. 396. The statute requires cattle-guards to be constructed wherever fences are required. To exempt defendant from liability in this case would be, in effect, to hold that the statute does not require it to construct and maintain a cattle-guard at any place on its line in this State.
The plaintiff sued for and recovered judgment in the Circuit Court of Adair County for double damages for the killing of five steers and injuring of five others on the right-of-way of the defendant railway company. This judgment was affirmed on appeal by the Kansas City Court of Appeals. One of the judges deeming the decision in conflict with decisions of this court and with other decisions of the appellate courts of this State, the cause was transferred to this court.
On August 25, 1920, plaintiff shipped a carload of cattle from Kansas City, Missouri, over defendant's railroad to himself at Cardy, a station on defendant's railroad in Macon County, where they were unloaded into defendant's stock pens about nine P. M. Plaintiff, with his assistants, undertook to drive the cattle from said stockpens to his farm in Adair County, and in so doing necessarily drove them upon a public road crossing the railroad tracks between the stock pens and the station, and when the cattle were upon the railroad tracks at said point they broke away and ran west upon the railroad tracks about two miles, where they were struck by one of defendant's trains and some were killed and some were injured. The remainder of the cattle ran still further west on the track and others were killed and injured by another train. From the west end of the switch limits at Cardy the railroad passes through inclosed and cultivated fields, and it was and had been for many years inclosed by lawful fences on both sides of the right-of-way at the points where the cattle were killed and injured, but there were no cattle-guards at any point on said railroad between the station at Cardy and the station of Elmer, five miles west of Cardy.
It is conceded that the railroad company was under no duty to fence its right-of-way at the point where the cattle entered upon the defendant's track at the public-road crossing within its switch limits. And it may be further conceded that a railroad company is neither required nor permitted to inclose its tracks or station grounds within its necessary switch limits. Appellant contends, in the brief of its learned counsel, that the question whether it should have had wing fences and cattle-guards, has nothing whatever to do with this case. "The cases all hold," so counsel say, "that it makes no difference how far the cattle run along the right-of-way, or how many places they may pass where cattle-guards and wing fences should have been built and maintained, if at the point where they enter the right-of-way the law does not require such cattle-guards and wing fences, there is no liability under the statute."
Section 9948, Revised Statutes 1919, reads, in part: "Every railroad corporation . . . running or operating any railroad in this State, shall erect and maintain lawful fences on the side of the road where the same passes through, along or adjoining enclosed or cultivated fields or unenclosed lands . . . and also to construct and maintain cattle-guards, where fences are required, sufficient to prevent horses, cattle, mules and all other animals from getting on the railroad," etc.
In Edwards v. Railroad Co., 74 Mo. 117, the right-of-way of the railroad company was inclosed by fences up to the south line of the town of Pickering and the open depot grounds of the defendant lying within the limits of said town. At this point there was a cattle-guard with connecting cross fences only two feet high. Plaintiff's cow entered the inclosed right-of-way over this cross fence and was killed by a train. At page 122, Hough, J., said:
The case is on all-fours with the case at bar.
In Worley v. Railroad, 135 Mo.App. 461, 115 S.W. 1039, a mule went upon a railroad track at the crossing of a public highway and on account of the absence of a cattle-guard strayed down the track where fences were required and was killed by a train. It was held that the fact that it entered upon the right of way at the crossing of the public highway was no defense. Reynolds, P. J., said (p. 465): ...
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