Winters v. Hines
| Decision Date | 25 March 1921 |
| Citation | 229 S.W. 281,207 Mo.App. 412 |
| Parties | J. M. WINTERS, Respondent, v. WALKER D. HINES, Director General of Railroads, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court of Pemiscot County.--Hon. Sterling H McCarty, Judge.
AFFIRMED.
Judgment affirmed.
W. F Evans and Ward & Reeves for appellant.
(1) We admit that if a railroad be constructed across a traveled road, such as the one involved in this case, then the company must maintain wing fences and cattle guards (and not-gates) even though the road has not been established by public authority, nor funds expended thereon. Sikes v. Railroad, 127 Mo.App. 326; Dow v. Railroad, 116 Mo.App. 555; Roberts v. Railroad, 43 Mo.App. 287. (2) But the principle announced in the cases last cited is not to be applied to a case where, as here, the railroad was established before the alleged public road, and in such case, before the railroad is bound to dispense with its side fences or gates and build cattle guards and wing fences, the road crossing over the right of way of the railroad must be condemned and paid for. Franklin County v. Railroad, 210 S.W. 874; St. L. & S. F. Ry. Co. v. Gordon, 157 Mo. 71; Grand Ave. Ry. Co. v. People's Ry. Co., 132 Mo. 34; Kansas Suburban Belt Ry. Co. v. Railway, 182 Mo. 599; Kansas City v. Railroad, 102 Mo. 633. (3) The plaintiff must recover if at all, upon the cause of action pleaded, and not upon some other or different cause of action. Hufft v. Railroad, 222 Mo. 286; Grisswold v. Haas, 145 Mo.App. 578; Fitch v. Ackerman, 150 Mo.App. 148; Adler & Co v. Railroad, 110 Mo.App. 339; Engle v. Ferrell, 126 Mo.App. 557; Powell v. Shipps, 85 Mo.App. 467. (4) The questions submitted to the jury should have been within the issues made by the pleadings, as well as by the evidence. State ex rel. v. Ellison, 270 Mo. 645; State ex rel. v. Ellison, 176 S.W. 11; Degonia v. Railroad, 124 Mo. 589; Hufft v. Railroad, 222 Mo. 286; Mansur v. Botts, 80 Mo. 668; Bank v. Murdock, 62 Mo. 70.
No brief for respondent.
Action for single damages for frightening a horse and running him into a trestle on defendant's track. The petition was in two counts; the first count based on failure to erect and maintain good and sufficient fence by reason of which the horse came upon the track and was then frightened by a locomotive and train and ran into the trestle and was killed. The second count was based on negligence of the employees in charge of the train in not stopping after they discovered the peril of the horse. At the close of the testimony, plaintiff elected to stand on the first count. The jury returned a verdict for plaintiff for $ 200 on which judgment was entered and defendant has appealed.
The evidence shows that from Bragg City, a road runs east along the north side of the railroad about one-half mile, then crosses the railroad and continues east on the south side. From the point where this road crosses the railroad, a road runs on south. The trestle upon which the horse ran and was killed is about one-half mile east of the crossing. From the crossing both east and west, the right of way was fenced. There were no cattle guards or wing fences at the crossing but gates were put in by the appellant on either side and persons using this road passed through these gates in crossing the railroad. This road was used by the general public and had been so used for three or four years. These gates were often left open by persons traveling the road and stock passed through them onto the right of way of the railroad and had often been driven out by the section men. One of these gates was open part of the day of the accident and was found open after the accident on that day. The horse was first seen on the track with some other horses about 100 yards east of the crossing and was there when the train approached going east. This train frightened the horse and he ran onto the track and ran part way over the trestle when he fell and broke his leg and had to be killed. At a point about half-way between the crossing and trestle, there was a place in the fence on the south side of the right of way where some of the wires were down, but the evidence does not disclose that the horse entered the right of way at that point but it is conceded by appellant that the horse entered the right of way by passing through one of the gates where the road crosses the railroad. Shortly after this accident, cattle guards were put in and the gates then left open. There was no conflict in the testimony except as to the condition of the gates and the mode of fastening them.
We are cited to cases by appellant which hold that if a gate at a farm crossing is left open by some one other than the employees of the railroad company and the agents or servants of the company are not negligent in discovering it, the company is not liable. [Rowan v. Railroad, 198 Mo. 654, 96 S.W. 1009; A. T. & S. F. Ry. Co. v. Kavanaugh, 163 Mo. 54, 63 S.W. 374; Rowan v. Railroad, 82 Mo.App. 24.]
It now contends that under the authority of these cases, it cannot be held liable for the gate at the crossing being open, if left open by some unknown person in passing through. If the company had discharged its full duty in putting in these gates and in keeping them in repair, this position would be sound but we do not agree with that contention.
The duty of defendant must be measured by the circumstances surrounding it and its relation to the road and the people who used it. It does not appear whether or not the right of way was fenced prior to the time that the public began to use this road and began to travel across the railroad but it does appear that this road and crossing had been used by the public for three or four years and that during all that time the right of way was fenced and these gates maintained by defendant for the use of the public in crossing its track while traveling this road. The statute prescribes the duty of a...
To continue reading
Request your trial