White v. Sligo and Eastern Railroad Company
| Decision Date | 14 November 1914 |
| Citation | 170 S.W. 923,185 Mo.App. 425 |
| Parties | ARTHUR WHITE, Respondent, v. SLIGO AND EASTERN RAILROAD COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Crawford County Circuit Court.--Hon. L. B. Woodside Judge.
AFFIRMED.
Judgment affirmed.
A. H Harrison, for appellant.
(1) Instruction number 2 given at the instance of the plaintiff was not a correct declaration of law under the facts in the case; it failed to submit to the jury the question whether or not the defendant had notice of the defective condition of its fence a sufficient length of time to have repaired it; it ignored the defense of the defendant that the fence had been altered and changed by the owner of the adjoining lands; it put upon the defendant the burden of erecting and maintaining a "lawful" fence, while the statute only required a "good" fence; it was erroneous in that it submitted to the jury to find whether or not the fence, as originally constructed, was a lawful fence, in the absence of any evidence that it was not a lawful fence. Section 3146, R. S. 1909; Railroad v. Kavanaugh, 163 Mo. 54; McCallister v. Ross, 155 Mo. 94; Hax v. Railroad, 123 Mo.App. 172. (2) It devolved upon the plaintiff to prove that the mare came upon the railroad right of way at a point not enclosed by a good fence at a point on the right of way where, under the facts in this case, the defendant was required to erect and maintain such fence; that the mare was frightened by a locomotive or train of cars belonging to defendant; that in consequence of such fright the mare ran into a culvert or bridge and was injured, all of which the plaintiff wholly failed to prove in this case. Therefore the court erred in refusing the instructions, in the nature of demurrers to the evidence offered by the defendant. Perkins v. Railroad, 103 Mo. 52; Shaw v. Railroad, 110 Mo.App. 561; Yeager v. Railroad, 61 Mo.App. 594; Fritz et al. v. Railroad (Mo.) 148, S.W. l. c. 78; 1 Greenleaf, Ev. (15 Ed.), sec. 11; Geltz v. Railroad, 38 Mo.App. 579; Cathey v. Railroad, 149 Mo.App. 141; Eggleston v. Railroad, (Mo.) 164 S.W. 169.
Harry Clyner and Frank Farris for respondent.
(1) The defendant company was not only required to erect a lawful fence, but it was required to maintain it, and this obligation to maintain a lawful fence continued during the life of the railroad. Whiteman v. Railroad, 163 Mo.App. 228; Sections 3145, 3146, R. S. 1909. (2) Instruction number 2 is a clear and concise statement of the law, and is not subject to any of the objections lodged against it by appellant. If appellant wanted the question, as to whether the condition of the fence had existed a sufficient length of time for it to have had implied notice of such condition, submitted to the jury it should have requested an instruction on that question. Having asked none the court was not required to give it. Warrington v. Kallauner, 135 Mo.App. 5 (3) Respondent was not required to prove by direct and positive testimony that the mare was frightened or run by appellant's engine or train, but could establish such facts by circumstances. Brown v. Railroad, 104 Mo.App. 691; Lynn v. Railroad, 164 Mo.App. 445; Carlos v. Railroad, 106 Mo.App. 574; Hobbs v. Railroad, 113 Mo.App. 126.
This action is under section 3146, Revised Statutes 1909, for injuries resulting in death to plaintiff's horse by reason of being frightened and run by a passing locomotive and train into an open culvert through defendant's roadbed. The fact that the animal came onto the right of way from an adjoining pasture by reason of a defective fence is hardly controverted; in fact, the defendant seeks to avoid responsibility for the condition of the fence by reason of the act of a former owner of the land moving and changing the fence from its original location and condition. The evidence shows that the animal escaped onto the right of way where the barbed wire fence was loose and flat on the ground.
It can hardly be doubted from the evidence that the animal was injured by trying to cross this open culvert. It was found on the right of way twenty-eight feet from the culvert with one leg broken below the knee and another skinned and bruised. The injured animal was with several others, also found on the right of way further down the track, and the culvert showed prints of horses' tracks leading to the culvert and on the ties over the same and signs of a horse's foot having slipped between the ties. There were also signs that a horse had fallen or rolled off this culvert down on the ground, horse tracks being found there also.
The main controversy at the trial was as to whether the animal had been injured before the train came along and was then standing on the right of way injured, or was frightened and run into the culvert by defendant's train. This issue was sharply drawn both in the evidence and by the instructions. The jury found for plaintiff and, if there is any substantial evidence to support that finding it is conclusive here. Plaintiff's evidence is largely circumstantial, though there is direct evidence that the train was whistling near the place of the injury at the time thereof and that the other animals, companions of the one injured, were seen running ahead of the train, though some distance therefrom at a place a short distance beyond the point of the injury. The point in dispute is whether these animals, and particularly the one injured, were frightened and run by the coming train before reaching the culvert and before the injury, or was this one injured before the train came along and the others frightened and run only after the culvert was passed both by such animals and the train. If plaintiff's evidence is to be believed, the horses' tracks were continuous through the down place in the fence, up the embankment onto the track, and down the track to the culvert beyond. Defendant's employees running the train say the animals were not on the...
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