White v. Sligo & E. R. Co.

• Decision Date: 14 November 1914
• Docket Number: No. 1365.,1365.
• Citation: 170 S.W. 923,185 Mo. App. 425
• Court: Missouri Court of Appeals
• Parties: WHITE v. SLIGO & E. R. CO.

170 S.W. 923

185 Mo. A. 425

WHITE v. SLIGO & E. R. CO.

No. 1365.

Springfield Court of Appeals. Missouri.

November 14, 1914.

1. APPEAL AND ERROR (§ 1001) — REVIEW — VERDICT.

A verdict is conclusive on appeal if supported by any substantial evidence.

2. RAILROADS (§ 443) — INJURIES TO STOCK — ACTIONS — EVIDENCE — SUFFICIENCY.

In an action under Rev. St. 1909, § 3146, declaring that a railroad company shall be liable for injuries to stock, which, having strayed upon its right of way through defects in the fence, shall be injured when frightened and run by a train, evidence held sufficient to sustain a finding that plaintiff's horse, which strayed on the right of way through a defect in the fence, was frightened by the train and run into a culvert, where it was hurt.

3. RAILROADS (§ 412) — FENCES — NOTICE OF DEFECTS.

A railroad company has constructive notice, as a matter of law, of defects in its fences which have existed for several months.

4. APPEAL AND ERROR (§ 1064) — REVIEW — HARMLESS ERROR.

Where a railroad company neither had a good fence, as required by law, nor a lawful one, as an instruction in an action for injuries to stock which strayed on the right of way charged it should maintain, error in the charge, because it required a different fence from that prescribed by law, is harmless.

5. RAILROADS (§ 412) — FENCES — SUFFICIENCY.

It is the duty of a railroad company to maintain a good fence, inclosing its right of way; hence it cannot escape liability, for injury to stock which strayed thereon, because its fence, which had become defective, had once been sufficient.

6. RAILROADS (§ 412) — FENCES — SUFFICIENCY.

Where a railroad acquiesced in a change of its right of way fence made by the abutting landowner to avoid the washing out of the fence by a small creek, and the fence as re-erected was as safe and secure as before removal, the railroad company is bound to maintain the new fence.

7. RAILROADS (§ 412) — FENCES — LIABILITY OF RAILROAD.

Where a lessee of land abutting on a railroad right of way had no notice of any implied or express agreement between the company and his grantor exempting the company from duty to maintain a part of the right of way fence, the company is liable for injuries to the lessee's stock resulting from defects in its fence.

Appeal from Circuit Court, Crawford County; L. B. Woodside, Judge.

Action by Arthur White against the Sligo & Eastern Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

A. H. Harrison, of Steelville, for appellant. Harry Clymer, of Steelville, and F. H. Farris, of Rolla, for respondent.

STURGIS, J.

This action is under section 3146, R. S. 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, 28 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...