Whittier v. C., M. & St. P. R'Y Co.

• Decision Date: 09 March 1878
• Citation: 24 Minn. 394
• Parties: A. M. P. WHITTIER <I>vs.</I> CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY.
• Court: Minnesota Supreme Court

24 Minn. 394

A. M. P. WHITTIERvs.

CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY.

Supreme Court of Minnesota.

March 9, 1878.

This action was brought in the district court for Dakota county, to recover the value of fifteen head of cattle, alleged to have been killed through the negligence of the defendant. The complaint alleged that the defendant was operating the road of the Hastings & Dakota Railway at the time of the alleged negligence, and "was daily running trains of cars over said road without building and maintaining a good and sufficient fence, where the same passed through * * and over the lands belonging to the plaintiff, as required by chapter 25, General Laws of the State of Minnesota, for the year 1872, and at the place where the injury * * was committed no fence had been constructed on either side of the road." The case was tried by Crosby, J., and a jury. The plaintiff having rested, the defendant moved for a nonsuit, upon the grounds that the plaintiff had failed to prove negligence in the defendant, and had himself contributed to the loss of the cattle by his own negligence. This motion was denied, and defendant duly excepted. All the evidence having been introduced, the court charged the jury, in part, as follows:

"With reference to the * * * * * killing of the stock, it is admitted that the said railroad company has the right to operate their road through the land of the plaintiff. It is a duty imposed by law that this road shall construct and maintain good and substantial fences on both sides of its road. The charter under which the road operated and erected its fence was that it was to be of boards or rails five and one-half feet high. The law provides, also, that the company shall be liable for all damages sustained by any persons by reason of negligence to keep and maintain such fences.

* * * * * * * * *

"I am requested, gentlemen of the jury, by the defendant to instruct you that to entitle the plaintiff to recover in this action for the killing of the stock complained of, it must appear that the injury was occasioned by the negligence of the defendant, and it must also appear that there was no contributory negligence on the part of the plaintiff which contributed to the injury, unless you find that the injury was wilfully, wantonly or intentionally inflicted. That I give you, gentlemen of the jury, as the law. But I instruct you that the omission to maintain fences on each side of the company's road is an act of negligence, and would be sufficient to charge the company with all damages resulting from the omission to perform that duty, unless the acts of the plaintiff contributed to the injury. If the acts of the defendant were wanton or wilful, why then they would be liable in any court.

"I am requested by the defendant to instruct you that it devolves on the plaintiff to prove that the stock was killed by the negligence of the defendant, and that plaintiff's negligence or carelessness did not contribute to the injury. I give you that instruction, gentlemen of the jury. But I have already stated that the omission to build and maintain a good and substantial fence is an act of negligence, if you find that to be a fact.

"I am also requested to instruct you that if the jury find the defendant fenced its road at the point where the stock got on to the same and was killed, or put in suitable bars there at the time it was built, and the plaintiff afterwards, without the permission of the defendant, tore the fence down and put up bars therein in its place for his own convenience and benefit, and failed to keep them shut or put up so as to protect his stock from entering on the railroad track, knowing that engines and cars were daily passing over the same, and placing his stock in the pasture knowing that there was nothing to prevent them from straying on the track, it was an act of negligence on the plaintiff's part; and if proved that such acts of the plaintiff contributed to the injury complained of, the plaintiff cannot recover for such injury, and your verdict should be for the defendant on the first cause of action in the complaint. That is the law, gentlemen of the jury. If a railroad company fences its road, and the owner of the land goes and takes down the fence, and by reason of having taken the fence down stock strays upon the railway track, and the act of taking the fence down contributes to the injury, he is guilty of contributory negligence and could not recover. But this only applies to the act of the individual himself. If his cattle should break down the fence, and he should not put them up, and they remained down after his cattle had broken them down some three or four years, why that would not be regarded as contributory negligence on the part of the plaintiff, and the company would have notice that they were down. If they remained down some three or four years, it would be a sufficient length of time that they were down.

* * * * * * * * *

"Much testimony, gentlemen of the jury, has been given with reference to cattle guards and crossings at this point. There is no law, gentlemen of the jury, that I am aware of, and counsel have not been able to call my attention to any, which charges a railroad company with the duty of constructing and maintaining private crossings. If that duty became imposed on a railroad company and the owner of the land, and there are reciprocal rights and duties with reference to such private crossings and cattle guards, would depend entirely upon the terms of the contract made between the railroad company and the individual.

"In this case, gentlemen of the jury, there is no evidence that any such contract was made. There is no evidence that there was a contract between the railroad or Hastings & Dakota company, or the defendant in this action, that they should put in the cattle guard or contracted to maintain a crossing for Mr. Whittier. * * * * * * * * *

"Then as to the duties and rights of the railway company and Mr. Whittier: It was the duty of the railway company, the defendant in this case, to construct and maintain fences upon both sides of the road across Mr. Whittier's land. There is the duty imposed upon them by the law and the charter under which they are operating their road, and also by the general law of the state. Mr. Whittier had the right to use the remaining portion of his land which he had not conveyed to the railroad company. He had a right to use it for such purposes as he saw fit. If he turned his cattle upon that land, and the railway company failed to erect or maintain the fence, then Mr. Whittier was not guilty of negligence in so doing. It was the duty of the company to erect and maintain fences.

* * * * * * * * *

"If Mr. Whittier knew that they had not performed their duty, the knowledge would not deprive him of the right to use his land. He had the right to use his land; he had the right to turn his cattle upon it, and if, upon failing to perform their duty, the cattle strayed upon the railway track and were killed, it was the negligence of the defendant, to which the acts of the plaintiff did not contribute.

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"But, as I said before, if they erected their...