Scott v. Missouri-Kansas-Texas R. Co.

• Decision Date: 11 November 1929
• Citation: 22 S.W.2d 654,224 Mo.App. 1
• Parties: H. A. SCOTT, RESPONDENT, v. MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, APPELLANT
• Court: Kansas Court of Appeals

22 S.W.2d 654

224 Mo.App. 1

H. A. SCOTT, RESPONDENT, v. MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, APPELLANT

Court of Appeals of Missouri, Kansas City

November 11, 1929

Appeal from the Circuit Court of Vernon County.--Hon. Charles A Hendricks, Judge.

AFFIRMED.

Judgment affirmed.

A. J King for respondent.

A. E Elliott for appellant.

BARNETT, C. Boyer, C., concurs. Bland and Arnold, JJ., concur. Trimble, P. J., absent.

OPINION

BARNETT, C.

This is a suit for damages. Plaintiff's petition alleges that he was driving five head of horses and two mules along a public road; that the defendant's railroad crossed the public road and at this place defendant had erected a cattle guard just west of the crossing "composed of two standard lateral steel sections on the main line and the remainder was composed of standard steel prongs, except one of the steel prong sections was out and missing and one section of the wing fence south of the cattle guard was down." The petition alleged the facts necessary to show that the place in question was one where defendant was required to maintain fences and a cattle guard under Section 9948, Revised Statutes 1919. It was alleged that while plaintiff was attempting to drive his animals over the railroad crossing they became frightened at some object near the railroad crossing and ran over and across the cattle guard and on the steel prongs thereof, and thereby seven of the animals received injuries and the death of one animal resulted. It was also alleged that the injuries were occasioned by the negligence of defendant in the erection of the cattle guard with the section of the fence to the cattle guard "being out and gone;" that defendant failed and neglected to keep its fence and cattle guard in repair, and by reason of such failure and negligence plaintiff had been damaged in the sum of $ 397.50, for which sum, together with the costs, plaintiff prayed judgment. The answer was a denial together with an admission that defendant was a railroad company. The evidence showed that the cattle guard in question was maintained at a place where fences were required as defined by Section 9948, Revised Statutes 1919. There was evidence that plaintiff, assisted by a boy, drove plaintiff's animals up to the place where the railroad intersected the public highway. There was a truck standing on a pair of scales about one hundred feet south of the railroad track. The engine of the truck was started about the time the animals arrived at the crossing and the horses turned and went west through the cattle guard. Plaintiff stated that when the engine of the motor truck was started the animals "were scared some;" that there was a section of the cattle guard out and they headed for that place and went through and hurt their feet. He stated that it looked like one animal went through the space where the section of the cattle guard was out and the others went off on the prongs. The animals were driven off the railroad track, but in going out the same thing occurred. After they were driven out, being somewhat unruly by this time, they crossed the cattle guard a third time in the same manner. There was evidence that the section of the cattle guard had been out for six months or more before the time of the injury to the animals; that the part of the cattle guard that was missing left a space about two and one-half feet wide that led from the public road into the enclosed part of the railroad right of way. Plaintiff stated: "It looked like a gate for these horses; one would head for it and there was only room for one to go through." Another witness, in describing the movements of the horses when they passed onto the right of way, said: "One started through and the others crowded up and went over the guards." Another witness said: "There was one leading the bunch, and they went through the space where the cattle guard was out." The case was tried to the court without a jury. Judgment was rendered for plaintiff and defendant has appealed.

OPINION.

Appellant contends that a demurrer to the evidence should have been sustained because the evidence conclusively shows that plaintiff's animals were not injured by the engine or cars of the defendant and that no recovery can be had under Section 9948, Revised Statutes 1919, unless there is an actual collision. Appellant further contends that there can be no recovery under Section 9949, Revised Statutes 1919, because the evidence conclusively shows that the animals were not frightened or run by any passing locomotive, motor car, or other vehicle or train on the railroad. It is undoubtedly the law that no one may recover double damages under Section 9948, Revised Statutes 1919, unless there is a collision with one of defendant's conveyances. [Eggleston v. K. C. Southern R. Co., 177 Mo.App. 346; Hires v. St. Louis, etc., R. Co., 157 Mo.App. 46, 137 S.W. 60; Logan v. St. Louis, etc., R. Co., 111 Mo.App. 674, 86 S.W. 565.] It is also plain that plaintiff cannot recover under Section 9949, Revised Statutes 1919, which provides that whenever any livestock shall go on the railroad right of way and the railroad is not at the place or places enclosed by a good fence on both sides of the railroad such as is required by law, or where the railroad has failed to maintain a good and sufficient cattle guard "and such stock by being frightened or run by any passing locomotive, motor car or other vehicle or train on said railroad, shall be injured or killed" etc., the railroad shall be liable for the amount of damages sustained.

In this case plaintiff did not attempt to recover double damages; nor is there anything in the petition or evidence to suggest that the action brought under Section 9948, Revised Statutes 1919. Section 9948 requires the railroad company 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 right of way. In addition to this absolute requirement the statute provides that until the railroad company has complied with the statute it shall be liable for double damages done by its agents, engines or cars. It is well established that plaintiff may maintain a suit for damages due to the failure of the railroad company to maintain cattle guards sufficient to prevent horses cattle, mules and other animals from getting on the railroad right of way, notwithstanding the fact that the injury is not of that kind which permits the assessment of double damages. Thus a recovery may be had if, by reason of the failure to fence as required by statute, plaintiff's mare got on the railroad right of way and was killed by reason of becoming entangled and...