Swanson v. Chi., M. & St. P. Ry. Co.

• Decision Date: 09 May 1900
• Citation: 79 Minn. 398,82 N.W. 670
• Court: Minnesota Supreme Court
• Parties: SWANSON v. CHICAGO, M. & ST. P. RY. CO.

79 Minn. 398

82 N.W. 670

SWANSON

v.CHICAGO, M. & ST. P. RY. CO.

Supreme Court of Minnesota.

May 9, 1900.

Appeal from district court, Goodhue county; W. C. Williston, Judge.

Action by D. O. Swanson against the Chicago, Milwaukee & St. Paul Railway Company. Verdict for defendant. From an order denying a new trial, plaintiff appeals. Affirmed.

Syllabus by the Court

1. It is the duty of the landowner for whose benefit and convenience gates are constructed and placed in a railroad right of way fence at a private farm crossing upon the land of such owner to keep such gates closed.

2. The railroad company owes no duty to the landowner at whose instance and for whose convenience and upon whose land such gates are put into the railroad fence, or to those in privity with him, to keep such gates closed. Its full duty is performed if the gates are kept in reasonably good repair. Albert Johnson, for appellant.

F. W. Root and F. M. Wilson, for respondent.

BROWN, J.

This is an appeal from an order of the district court of Goodhue county denying plaintiff's motion for a new trial after verdict for defendant. The action is to recover the value of certain horses heretofore owned by plaintiff, alleged to have strayed upon defendant's railroad track through a defective fence along defendant's right of way, and killed by one of its locomotives. At the time the horses were killed, plaintiff was in possession of the land described in the complaint, and had been in the possession thereof, as tenant of the owner, for 15 years prior thereto. During the year 1897 he used said land as a pasture for his horses and cattle. The railroad track of defendant extends across the southeast corner of this pasture, running in a northeasterly direction, leaving a very small portion of land in the southeast corner of the tract. In compliance with the statutes of the state, defendant constructed a fence on each side of its right of way as it extends across said land, and at the instance and for the convenience of the owner of the land put into such fence gates on each side of the track at a private wood road leading from plaintiff's land ‘onto the lowlands south of the track.’ These gates were in the fence during all the time of plaintiff's occupancy of the land. Soon after the horses were killed, plaintiff examined the railroad fence, and discovered that the gate leading from the pasture into the right of way was open, and also that at a short distance from such gate the fence was partly down, and considerably out of repair. Plaintiff turned his horses into the pasture the day of the accident. They made their way into the right of way, either through the open gate or at the point where the fence was out of repair, and were killed. There is no evidence showing at which point they passed through the fence. Plaintiff's counsel contends that it is immaterial whether they passed through the gate or at the point where the fence was out of repair. His contention in this respect is correct if it be held that the railroad company was in duty bound to keep the gate closed. There is no evidence showing by whom the gate was left open. Whether by plaintiff's servants or by some third person does not appear. The gate was not used by defendant, and the evidence furnishes no suggestion that its servants had left it open. If it be held that the defendant was under no duty or obligation to keep the gate closed, the order appealed from must be sustained, because there is no evidence to justify a finding that the horses entered the right of way at the point where the fence was out of repair. If such is the law, it was incumbent on plaintiff to show a failure of duty on the part of defendant with respect to keeping its fence in good repair, and that such failure of duty was the direct and proximate cause of the injury sustained; in other words, that the horses entered upon the right of way at the point where the fence was defective, and not at the gate. It is not claimed that the gate was not in reasonably good repair. So we are confronted with the question whether it was the duty of the defendant to keep the gate closed. The question is of more than passing importance, and we have given it a thorough and careful consideration. Our statutes provide that all railroad companies in this state shall build or cause to be built good and sufficient cattle guards at all wagon crossings, and good and substantial fences on each side of such road, and maintain the same. Section 2696, Gen. St. 1894, provides: ‘That whenever a railroad shall hereafter be laid out, opened and fenced...