West v. Missouri Pac. Ry. Co.

• Decision Date: 23 May 1887
• Parties: MARION WEST, GUARDIAN, ETC., Respondent, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
• Court: Kansas Court of Appeals

26 Mo.App. 344

MARION WEST, GUARDIAN, ETC., Respondent, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.

Court of Appeals of Missouri, Kansas City.

May 23, 1887

APPEAL from Jackson Circuit Court, HON. FRANCIS M. BLACK, Judge.

Affirmed.

Statement of case by the court.

This was an action under section 809, Revised Statutes, for the recovery of double damages, on account of the killing of a mule by defendant. The case was tried on the following agreed statement of facts and evidence: " That the plaintiff in the above cause is the guardian of J. C. West, and that, as such, he has the right to maintain the above action; that the mule, on account of which the above suit was brought, was the property of J. C. West; that it was killed by the defendant's railroad, on the thirteenth day of December 1883, at a place where defendant's road runs through the cultivated field of one J. P. Knoche; that the mule was worth one hundred and twenty-five dollars; that the mule passed from plaintiff's field, where it had been turned by plaintiff to graze, into the field of John P. Knoche through a partition fence that belonged to Knoche that was down, and had been, for a long time; that the mule, before it reached Knoche's land, passed across the Chicago & Alton Railroad at a private farm crossing of West's, where said Chicago & Alton road passed through West's field that said crossing was protected with cattle guards, and was used by West in passing through their field; that, between that part of the field of Knoche's, into which the mule first passed, and the track or road bed of defendant, there was a second fence of Knoche's; that in this second fence of Knoche's there was a gap, or place where the fence was down or open, and through which gap or open place plaintiff's mule passed into that part of Knoche's field that defendant's road run through; that this last mentioned fence had been down or open for about six weeks prior to the time the mule passed through it; that the mule then passed through an open gate in the defendant's fence at a private farm crossing of Knoche's in Knoche's field, and in and upon the defendant's road bed, where it was killed by one of the defendant's passing trains; that the gate was hung with hinges and hooks, and was easily opened and shut, and is the same gate spoken of in the evidence of John Knoche, John Knoche, Jr., and George Burris."

John Knoche, John Knoche, Jr., and George Burris testified that they lived near Blue river, a few miles east of Kansas City that they are acquainted with the track and road bed of the Missouri Pacific Company, where it runs through the field of John P. Knoche, and that they are acquainted with the gate that composed a part of said railroad company's fence, where it runs through said field. John Knoche and John Knoche, Jr., testified further, that said gate had been open and unclosed from the early part of the fall of 1883, about the month of September of that year, until the thirteenth day of December of said year, that being the day that a horse and mule belonging to some parties by the name of West were killed by the railroad.

This gate was at a private crossing of Knoche, and was used as such, and had been open ever since he threshed wheat in September.

George Burris testified that he passed the gate once or twice a week during the time stated by the other witnesses, and at such times the gate was open, and that he never saw it shut.

The court found for the plaintiff, and the defendant has appealed to this court.

ADAMS & BOWLES, for the appellant.

The undisputed evidence in this case is, that the gate, through which the mule of plaintiff escaped and entered upon defendant's track, was constructed for the benefit of Mr. Knoche, at his farm crossing. That the statute in that regard was strictly complied with, and that it was not opened, or left open, by the defendant or any of its employes. We contend that the court erred in rendering judgment for double damages against the defendant, and that, upon the agreed statement of facts and all the evidence, the finding should have been for the defendant. Harrington v. Railroad, 71 Mo. 386; Fitterling v. Railroad, 79 Mo. 504; Laney v. Railroad, 83 Mo. 469.

W. J. WARD, for the respondent.

I. Knoche's land not being enclosed with a lawful fence, the plaintiff's mule was not a trespasser thereon. Gorman v. Railroad, 26 Mo. 441.

II. Railroads must have their roads enclosed by a lawful fence or the man whose lands and fields their road runs through must have his property enclosed by one, if they would be free from liability for killing the stock of third parties. Th...