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

• Decision Date: 12 March 1912
• Docket Number: Case Number: 1625
• Parties: ST. LOUIS & S. F. R. CO. v. WILLIAMS.
• Court: Oklahoma Supreme Court

1912 OK 224

122 P. 152

31 Okla. 450

ST. LOUIS & S. F. R. CO. v. WILLIAMS.

Case Number: 1625

Supreme Court of Oklahoma

Decided: March 12, 1912

Syllabus

¶0 1. RAILROADS--Fences--Protection of Public. Statutes requiring railways to fence their rights of way are passed in pursuance of the police powers of the state, and are for the benefit of the whole public, and are not intended merely for the protection of adjoining landowners, unless it clearly appears from the language used that it was the intention of the Legislature to protect only such owners.

2. SAME--Private Crossings--Gates. In the absence of statute or agreement to the contrary, a railroad company must exercise reasonable care to see that the gates or bars at private or farm crossings are kept closed; the duty being included in that of maintaining a sufficient fence of which the gates or bars constitute a part. And, if the gates or bars are properly constructed and are left open by the landowner or by strangers without the knowledge of the company, it will not ordinarily be liable, the company being entitled to a reasonable time to discover that they are open and to close them; but the company will be liable if they have remained open for such length of time that it should in the exercise of reasonable care have discovered their condition.

3. NEGLIGENCE--Question for Jury. Where from the facts shown by the evidence, although undisputed, reasonable men might draw different conclusions respecting the question of negligence, such questions are properly for the jury.

Error from Ottawa County Court; W. Y. Quigley, Judge.

Action by Charles P. Williams against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded, with instructions.

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

S. C. Fullerton, for defendant in error.

KANE, J.

¶1 This was an action commenced by the defendant in error, plaintiff below, against the plaintiff in error, defendant below, to recover damages for injuries inflicted upon certain live stock belonging to the plaintiff by one of the defendant's trains. After the plaintiff rested, the defendant demurred to his evidence, which demurrer was overruled, and, the defendant offering no evidence, the court instructed the jury to "return a verdict in favor of the plaintiff for the sum of $ 690, together with interest thereon at the rate of six per centum per annum from the 18th day of November, 1908, as prayed for in plaintiff's petition." Upon this instruction the jury rendered its verdict, to reverse which this proceeding in error was commenced.

¶2 The grounds for reversal urged by counsel for plaintiff in error in their brief may be stated as follows: (1) The court erred in overruling the defendant's demurrer to plaintiff's evidence. (2) The court erred in refusing to give certain instructions requested by the defendant. (3) The court erred in instructing the jury to return a verdict in favor of the plaintiff. We think the evidence adduced by the plaintiff was sufficient to take the case to the jury. Section 1389, Comp. Laws 1909, provides that:

"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."

¶3 The next section defines a lawful fence; and section 1392 provides that:

"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."

¶4 The petition alleged that the defendant neglected to maintain and keep in repair and keep closed a certain gate, and that it permitted said gate to remain out of repair and remain open, and that the stock strayed upon the railroad right of way through said open gate in the railway company's fence on the Eliza Gibson farm, which gate had been open from the spring of 1908 until after the stock were killed in November of that year; that the gate posts were just common posts braced with 4x4 pine pieces, and this brace had burned off and the post burned off and the post leaned away over back, and that the gate could not be shut; that the section foreman and the sectionmen of the railroad company passed right by this open gate about every day during all the time it was open and out of repair. George Gibson, owner of the land, testified that the gate had been open since the spring preceding the accident; that during the winter it had been closed, but in the spring when they went to working in the field it was left open, because they had a private gate up next to the house, that they kept closed, and after the stock was out of the field that gate in the field was left open, because there was not anything in there. The tenant of the owner testified:

"This gate had been left open by me because the gate was not in very good condition and was hard to handle. The lower hinge was off."

¶5 The contentions of counsel in relation to the questions of law arising out of the foregoing facts may be best illustrated by the instructions which were requested by them and refused by the court. They are as follows:

"(2) A railroad company owes no duty to keep in repair its fence along the right of way, or its gates through such fence, to any other than the adjoining landowner or his lessees, and if the stock of others should stray upon such adjoining land and thence upon the track of the railroad through an open gate and be killed, such other persons could not recover therefor by reason of the company's failure to keep the fence in repair or the gate closed.

"(3) If you believe the plaintiff's stock entered the Gibson farm without right, but as a trespass, and strayed upon defendant's track therefrom through an open gate and was killed, your verdict should be for the defendant.

"(4) It was the

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