The Atchison, Topeka & Santa Fe Railway Company v. Kavanaugh
| Decision Date | 21 May 1901 |
| Parties | THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant, v. KAVANAUGH et al |
| Court | Missouri Supreme Court |
Transferred from St. Louis Court of Appeals.
Circuit court judgment reversed and cause remanded to St Louis court of appeals.
Gardiner Lathrop, S.W. Moore and L. F. Cottey for appellant.
Notwithstanding the gate in controversy may not have been a statutory gate yet, as the evidence disclosed that the gate was shut and securely fastened at six o'clock on the evening preceding the accident, and that the stock escaped upon the right of way sometime during the succeeding night, by reason of the gate being left open by some third person, there is no liability on the part of the defendant. Ridenore v. Railroad, 81 Mo. 227; Binicker v. Railroad, 83 Mo. 660; Harrington v. Railroad, 71 Mo. 384; Box v. Railroad, 58 Mo.App. 359; Stephens v. Railroad, 34 Mich. 323; Railroad v. Swearingen, 47 Ill. 206; Railroad v. Dickerson, 27 Ill. 55; Vinyard v. Railroad, 80 Mo. 92.
G. R. Balthrope and M. P. Balthrope for respondents.
There is no point in defendant's counsel's claim that defendant had no knowledge of the draw-bar or gate being in such a condition that it could not be opened and shut by persons going through the same without great difficulty, and that such persons were liable on that account to leave the bars or gate open, for it had been in that condition for years, prior to the killing of plaintiff's cows, and had never been constructed in the first instance as a statutory gate, and had often been found open, and defendant's agents and servants frequently passed through the same whilst it was in that condition. McMillan v. Railroad, 70 Mo.App. 568; Miller v. Railroad, 56 Mo.App. 72; Duncan v. Railroad, 91 Mo. 67.
This cause, reported in 75 Mo.App. 78, has been certified to this court from the St. Louis Court of Appeals, on the dissent of Bland, P. J., who dissented on the ground that the decision is in conflict with Harrington v. Railroad, 71 Mo. 384, and other cases.
This action is brought to recover double damages because four milch cows of plaintiffs were killed and two crippled on defendant's railroad track, by an engine, about seven o'clock on the morning of September 15, 1897, having passed through an open gate which led from plaintiffs' barn lot on the north side of the railroad track across such track to another gate which led into plaintiffs' pasture on the south side of such track. At this point, a farm crossing had been constructed by defendant company in 1897, and since that time it had maintained the same at that point, as well as the two gates aforesaid. These gates were what is known as "sliding gates," that is, gates hung at one end on wooden cleats nailed to double posts, and at the other end fastened to a post by hooks and staples. About six o'clock on the afternoon of September 14, 1897, Dennis Kavanaugh, one of the plaintiffs, drove their milch cows over this crossing from the pasture into the barn lot. He testified that he securely fastened both gates.
This action is grounded on section 2611, Un. Revised Statutes 1889, the provisions of which are as follows: "Every railroad corporation formed or to be formed in this State, and every corporation to be formed under this article, or any railroad corporation running or operating any railroad in this State, shall erect and maintain lawful fences on the sides of the road where the same passes through, along or adjoining inclosed or cultivated fields or uninclosed lands, with openings and gates therein, to be hung and have latches or hooks, so that they may be easily opened and shut, at all necessary farm crossings of the road, for the use of the proprietors or owners of the land adjoining such railroad . . . . and until openings, gates, etc., . . . . as aforesaid, shall be made and maintained, such corporation shall be liable in double the amount of all damages which shall be done by its agents, engines or cars, to horses, cattle, mules or other animals on said road."
The plaintiffs alleged in their petition a violation of the foregoing section of the statute, in that defendant had failed to construct and maintain statutory gates at the crossing, and that by reason thereof the plaintiffs' cows escaped upon the railroad track. There is no satisfactory evidence as to how the gate was opened. One of the plaintiffs gave it as his opinion that it could not have been opened by the action of the wind or by stock rubbing against it, and that someone must have passed through during the night or early morning and left it open. There was evidence that the crossing was used by persons living in the neighborhood, and also that the section men at work on defendant's road and tramps passing along the railroad were in the habit of going through the gates. There was also evidence that the gates were very heavy and were hard to open and shut. But the testimony of the testifying plaintiff,...
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