Theener v. Kurn

• Decision Date: 02 December 1940
• Citation: 146 S.W.2d 647,235 Mo.App. 823
• Parties: GEORGE F. THEENER, RESPONDENT, v. J. M. KURN AND JOHN G. LONSDALE, TRUSTEES OF THE ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, A CORPORATION, APPELLANTS. PAUL F. THEENER, RESPONDENT, v. J. M. KURN AND JOHN G. LONSDALE, TRUSTEES OF THE ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, A CORPORATION, APPELLANTS
• Court: Kansas Court of Appeals

146 S.W.2d 647

235 Mo.App. 823

GEORGE F. THEENER, RESPONDENT, v. J. M. KURN AND JOHN G. LONSDALE, TRUSTEES OF THE ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, A CORPORATION, APPELLANTS.

PAUL F. THEENER, RESPONDENT, v. J. M. KURN AND JOHN G. LONSDALE, TRUSTEES OF THE ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, A CORPORATION, APPELLANTS

Court of Appeals of Missouri, Kansas City

December 2, 1940

Appeal from Cass Circuit Court.--Hon. Leslie A. Bruce, Judge.

REVERSED.

Judgment reversed.

E. G Nahler, Mitchel J. Henderson, Thos. E. Deacy and Henderson Deacy, Henderson & Swofford for appellants.

(1) The trial court should have given defendants' declaration of law in the nature of a demurrer to the evidence since the defendants as trustees of a railroad company are liable only for damages which are the direct and proximate result of their failure to maintain proper right-of-way fences and are not responsible as a matter of law for damages to livestock which escape from the right-of-way and are injured or killed upon a public highway by an automobile at a point one-half mile from the right-of-way, said damages being too remote to make the trustees liable. Sec. 4761, R. S. Mo., 1929, Mo. Stat. Ann., sec. 4761, pp. 2144-6; Hughes v. Hannibal and St. Joseph Ry. Co., 66 Mo. 325; Ingalsbe v. St Louis-San Francisco Ry. Co., 219 S.W. 1005; McCaskey v. Railroad, 174 Mo.App. 724, 161 S.W. 277; Eaton v. Railroad, 201 Mo.App. 194, 208 S.W. 974; Scott v. Atchison, Topeka & Santa Fe Ry. Co., 32 S.W.2d 139; Boggs v. M.-K.-T. Ry. Co., 156 Mo. 389, 57 S.W. 550; Kurn v. Immel, 184 Okla. 571, 89 P.2d 308.

Will H. Hargus, C. E. Groh and Rosenberg, Hargus & Koralchik for respondents.

(1) Defendants are liable to plaintiffs for the reason that plaintiffs' damages were proximately caused by defendants' negligent breach of statutory duty to erect and maintain a lawful fence on the side of their railroad where the same adjoined the enclosed premises of plaintiffs. Sec. 4761, R. S. 1929, Mo. Stat. Ann., sec. 4761, pp. 2144-6; Sharp v. Q. O. & K. C. Railway Co., 139 Mo.App. 525, 123 S.W. 507; Ingalsbe v. St. Louis-San Francisco Railway Co., 295 Mo. 177, 243 S.W. 323, 24 A. L. R. 1051; 24 A. L. R. 1057 et seq.; Boggs v. M.-K.-T. Railway Co., 156 Mo. 389, 57 S.W. 550; Moss v. Bonne Terre Land and Cattle Co., 10 S.W.2d 338; Best v. Atchison, Topeka & Santa Fe Railway Co., 76 S.W.2d 442; Boucher v. Wabash Railway Co., 199 S.W. 742; Hockaday v. Panhandle Eastern Pipe Line Co., 66 S.W.2d 956; 45 C. J., p. 930, Sec. 490; Henry v. First Natl. Bk. of Kansas City, 115 S.W.2d 121; Gordon v. The Chicago, Santa Fe, and California Railway Co., 44 Mo.App. 201.

OPINION

SHAIN, P. J.

--This action involves two suits that were consolidated in the trial below and review is in accordance. The admitted facts in this case, which are involved in the issues before us for review, briefly stated are as follows: The defendants right-of-way runs along the south boundary of lands owned and operated by the plaintiffs and wherein live stock owned by plaintiffs were being pastured. Stock owned by each of plaintiffs escaped through a defective right-of-way fence of defendant into the railroad right-of-way and after escaping through a defective fence of defendant wandered out into U. S. Highway No. 71 and travelled west thereon for a distance of one-fourth of a mile where said stock were struck by an automobile being operated on said highway.

As a result of the collision, one mule belonging to plaintiff George F. Theener, valued at $ 150.00, was killed, and a horse, valued at $ 150.00, belonging to plaintiff Paul F. Theener was killed, and another horse belonging to said plaintiff was injured in the sum of $ 50.00.

Plaintiffs had judgment below and defendant duly appealed. The situation on review, for all practical purposes, presents a one point case as expressed in appellants' brief:

"The trial court should have given defendants' declaration of law in the nature of a demurrer to the evidence since the defendants as trustees of a railroad company are liable only for damages which are the direct and proximate result of their failure to maintain proper right-of-way fences and are not responsible as a matter of law for damages to livestock which escape from the right-of-way and are injured or killed upon a public highway by an automobile at a point one-half mile from the right-of-way, said damages being too remote to make the trustees liable."

The theory of respondents is expressed as follows:

"Defendants are liable to plaintiffs for the reason that plaintiffs' damages were proximately caused by defendants' negligent breach of statutory duty to erect and maintain a lawful fence on the side of their railroad where the same adjoined the enclosed premises of plaintiffs."

To the solution of the issue presented, Section 4761, Revised Statutes Missouri 1929, cited by both parties, must be considered. The portion of said statute directly bearing upon the point reads as follows:

"Section 4761. Lawful fences, gates, etc., who may build--trespassers.--Every railroad corporation formed or to be formed in this state, and every corporation running or operating any railroad in this state, shall erect and maintain lawful fences on the side of the road where the same passes through, along or adjoining enclosed or cultivated fields or unenclosed 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 also 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; and until fences, openings, gates and farm crossings and cattle guards 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, or by reason of any horses, cattle, mules or other animals escaping from or coming upon said lands, fields or enclosures, occasioned in either case by the failure to construct or maintain such fences or cattle guards. After such fences, gates, farm crossings and cattle guards shall be duly made and maintained, said corporation shall not be liable for any such damage, unless negligently or willfully done."

The key to the solution of the issue in this cause is the answer to the question, to-wit: Was the defect in the fence of the railroad the proximate cause of the injury to the stock in question?

The question, as to liability for injury to animals, by operation of railroads, has been frequently before our courts. The evolution of the doctrine of liability upon railroads for injury to stock presents an interesting study. At common law, no duty devolved upon a land owner to fence, and stock wandering upon land of another and being injured by pitfalls, places no liability on the land owner. For many years, free range for stock was the rule in Missouri and many other States. However, settlement of outlying pasture lands led to enactment of stock laws whereby duty to restrain stock was placed on the owner of the stock.

Prior to the enactment of aforesaid stock laws, the innovation of railroads created an emergency. Stock straying upon railroad right-of-ways presented a double danger, to-wit: Injury to stock and injury to the travelling public. Confronted with the situation of danger to stock and to people, resort was had to that resourceful source of power that seems to come into play when all other sources fail. The situation was met by enactment of laws based upon the policing power of the State. [Perkins v. St. Louis I. M. & S. Ry. Co., 103 Mo. 52, 15 S.W. 320.]

What is now Section 4761, Revised Statutes 1929, was enacted to meet the situation. After the enactment of the aforesaid statutes, our courts in early cases limited liability for injury to stock to injury caused by striking the animal. By legislative act, Section 3146, Revised Statutes 1909 (Sec. 4762, R. S. 1929) became the law. This section extended liability to injury caused by stock becoming frightened by operation of railroad engines, etc., and becoming injured by running into fences, culverts, bridges, sloughs or mire, or other objects along the right-of-way. This section only provides for single damages and the burden of proof that stock are injured in the way designated is on the claimant.

The liability upon railroads is based upon negligence in maintenance of lawful fences or safeguards so as to prevent stock from coming upon the right-of-way and double damages for striking and injuring, and single damages for fright, are allowed where defect in fence or defect in safeguards are found to be the proximate cause of injury.

Since the enactment of statutes for compensatory damages, supra, there are outstanding opinions by our appellate courts wherein it is held that the provisions for compensatory damages provided by the statutes, supra, are not exclusive. In these opinions, recovery for damages is upheld wherein the injury was neither by reason of stock being hit or frightened.

...