St. Louis & S. F. R. Co. v. Brown

Citation122 P. 136,1912 OK 68,32 Okla. 483
Decision Date09 January 1912
Docket NumberCase Number: 1368
PartiesST. LOUIS & S. F. R. CO. v. BROWN.
CourtSupreme Court of Oklahoma
Syllabus

¶0 RAILROADS--Operation--Injuries to Animals on Track. In an action against a railway company to recover for a cow; killed by its train at a place where the herd law is in force, it is error to instruct the jury that it is the duty of those operating its trains to keep a constant and proper lookout to discover cattle and other stock that may be on its track or in dangerous proximity thereto. In such cases, the duty of defendant's employees is to exercise ordinary care to avoid injuring the animals after their peril is discovered.

Error from Marshall County Court; J. W. Falkner, Judge.

Action by M. E. Brown against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded for new trial.

W. F. Evans, R. A. Kleinschmidt, and Fred E. Suits, for plaintiff in error.

Summers Hardy and Wm. M. Franklin, for defendant in error.

SHARP, C.

¶1 This action was originally brought before a justice of the peace in Marshall county. On the trial, the plaintiff prevailed. Upon appeal to the county court, plaintiff again recovered judgment.

¶2 Marshall county is situated in what was formerly the Indian Territory, and, prior to admission into the Union of the state of Oklahoma, the eastern part thereof, commonly known as the Indian Territory, was without a law restraining domestic animals; but, on the contrary, such animals were permitted to run at large. Article 1, c. 1, p. 39, Sess. Laws 1903, providing for a herd law, was extended in force in the state by the Schedule to the Constitution and the Enabling Act. Leflore v. Sanders, 24 Okla. 301, 103 P. 858. It provides:

"Section 1. Every owner of swine, sheep, goats, stallions, or jacks, shall restrain them at all times and seasons of the year from running at large, in the territory of Oklahoma.
"Sec. 2. All domestic animals other than those mentioned in section one hereof, shall be, by the owner thereof, restrained from running at large in said territory, unless permitted to run at large as hereafter provided in this act."

¶3 The statute then provides for the creation of stock districts, the holding of elections, etc., whereby certain territory may be released from the operation of the statute.

¶4 It is not shown by the record that either Marshall county or that part thereof wherein the accident occurred had been released from the operation of this statute at the time of the killing of the cow of defendant in error; and we cannot indulge the presumption that it was, but, on the other hand, must conclude that this law was in force in Marshall county.

¶5 Section 1389, Comp. Laws 1909, provides:

"It shall be the duty of every person or corporation owning or operating any railroad in the state of Oklahoma to fence its road, except at public highways and station grounds, with a good and lawful fence."

¶6 Section 1392 provides:

"Whenever any railroad corporation or the lessee, person, company, or corporation operating any railroad, shall neglect to build and maintain such fence, as provided in this act, such railroad corporation, lessee, person, company, or corporation operating the same, shall be liable for all animals killed by reason of the failure to construct such fence."

¶7 We do not understand that the action was predicated upon this latter statute, but, instead, was based upon the company's common-law liability for the negligent acts of its servants and employees. We agree with counsel for defendant in error that the onus was upon the railway company to show that the accident occurred at a point where it was by statute exempted from maintaining a fence along its road. Union Pacific R. R. Co. v. Dyche, 28 Kan. 200, and cases cited; International, etc., Ry. Co. v. Dunham, 68 Tex. 231, 4 S.W. 472, 2 Am. St. Rep. 484; Wilder v. Chicago, etc., Ry. Company, 70 Mich. 382, 38 N.W. 289; Cox. v. Minneapolis, etc., Ry. Co., 41 Minn. 101, 42 N.W. 924; Indianapolis, etc., Ry. Co. v. Lindley, 75 Ind. 426.

¶8 Ed Michael, a witness for defendant in error, testified that the animal was about 200 feet from the depot, within the east switch. G. T. Jewell, the from brakeman, testified that when he saw the cow he was in the gangway between the engine and the tender, about 100 feet from the front end of the depot or platform at Woodville; that the cow was struck about 60 or 65 feet south of the platform. E. A. Heffner, fireman, testified that he rang the bell in going through stations and over street crossings, and that he was ringing the bell when he first saw the cow, and that he was about two rail lengths, or 60 feet, from the depot when the cow was struck, and that the train was stopping for the station. O. W. Jones. station agent, testified that he looked out of the window and saw the pieces of the animal working out from under the engine as it came up to the depot. It was admitted that the accident occurred within the incorporated limits of Woodville, and there was other testimony that the accident occurred near the depot.

¶9 Station grounds, prima facie, it has been said, include all the right of way left unfenced between the switches and cattle guards on either side of the platform, with the switches and side tracks, unless they are shown to be unreasonable in extent. Ingham on the Law of Animals, 684; Mills & Le Clair Lumber Co. v. Chicago, etc., Ry. Co., 94 Wis. 336, 68 N.W. 996.

¶10 Counsel for plaintiff in error requested the court to instruct that, if the jury found from the evidence that the animal was grazing or roaming near its tracks within the station grounds of the town of Woodville, and that the animal in question did not make any move to go upon the track of defendant and in from of the approaching train until the train had approached so near the animal as to make it dangerous or impossible to stop the train before hitting it, taking into consideration the speed of the train, they should find the issues for the defendant. The court refused to so instruct. This instruction would have presented squarely to the jury the question whether or not the animal was killed within the station grounds, and defendant in error will not be heard to say that the company failed in its. proof on this issue.

¶11 Whether a railway company is under an obligation to fence its road at any particular point is, where the facts are undisputed, a question of law for the court; but whether a certain point constitutes a part of the station grounds, where the company may by statute be exempted from maintaining a fence, is a question of fact. Elliott on Railroads, 1202. Among the instructions given, were the following:

"You are further instructed, gentlemen of the jury, that it is the duty of railroad companies, in the movement and operation of their trains over the railroad, to use ordinary care and prudence to avoid injuring stock and keep a constant and proper lookout to discover cattle and other stock that may be in dangerous proximity to the railroad or on its track, and to use all ordinary prudence and care to avoid injuring stock when so found. Therefore you are instructed that it is the duty of the defendant to keep a lookout for stock that might be on the defendant's track or in dangerous proximity to it, and, when such cattle are discovered, to use ordinary care to prevent killing same; and after using such care and prudence, if same might have been discovered by ordinary care, and the defendant failed to use such ordinary care to prevent injuring or killing the same, then your verdict should be for the plaintiff.
"You are further instructed that if the employees of the defendant did not use ordinary care to discover said stock, and did not keep a lookout for the cow, unless said cow was in such close proximity to the track as to prevent the killing and injury by the use of ordinary care, then your verdict should be for the plaintiff.
"You are instructed that it was the duty of the defendant to keep a lookout for stock that might be upon the defendant's track or in dangerous proximity to it, and that when said cattle were discovered to use ordinary care to prevent injuring or killing the same; and if, after seeing said animal, or after same might have been discovered by the use of ordinary care, the defendant failed to use ordinary care to prevent injuring or killing same, that then your verdict should be for the plaintiff.
"You are further instructed that the rate of speed at which a train may be run depends upon the attending conditions and circumstances, taking into consideration the locality, the density of population, and the probabilities that persons or stock may be upon the track or in close proximity thereto.
"You are further instructed that if
...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT