103 Mo. App. 202 | Mo. Ct. App. | 1903
— This is an action under section 1105 of the Revised Statutes to recover damages on account of the alleged killing of two horses belonging tO' plaintiff, on defendant’s railroad in Adair county, Missouri, on the 14th day of February, 1902. On the evening of the day previous to the alleged date, two young-horses escaped from plaintiff’s son at his home and although search was made for them they were not found until the morning of the next day when they were both found dead lying along defendant’s track several hundred feet from a gate and farm crossing on a Mr. Ryan’s farm, and about two miles from plaintiff’s home. It was shown that a Mr. Bailey occupied the Ryan farm as a tenant; that the railroad was fenced on both sides where the horses were found dead; that the gate was open and had been for some days prior thereto sufficient to admit the passage of horses; that the gate could not be shut by reason of the fact that it was obstructed by snow which, according to one witness, had fallen about fifteen days prior to the date when the horses were found dead by the track, and by other witnesses not for so long a
Under the instructions of the court the jury found for the plaintiff the value of the two horses, which sum was doubled by the court. Defendant appealed.
The theory as found in plaintiff’s instructions was that under the evidence it was the duty of defendant, under said section 1105, Revised Statutes 1899, to have kept said gate closed. And the jury were instructed that if they found that it had been left open for such a length of time that defendant knew or by the exercise of reasonable care could have known it was open; and that plaintiff’s animals passed through said open gate onto the defendant’s railroad where they were killed, the verdict would be for plaintiff. The jury were also instructed as to the probative force of circumstantial evidence; and that if it found that the horses “went upon said railroad through an open gate as charged, and were struck and killed by defendant’s locomotive and cars,” the finding should be for the plaintiff. The court was
The defense of defendant mainly is, that the evidence failed to show that the horses got upon defendant’s track by reason of the insufficiency of its fence, as it was shown that when found they were at a point on or near the railroad where there was a sufficient fence; that there was no evidence that they passed through the open gate in question; and that the defendant violated no duty it owed to plaintiff with respect to said gate.
It is true that no complaint was made as to the sufficiency of defendant’s fence on both sides of its track where the animals were found. But as we understand the law, that is not a test of defendant’s liability, but on the contrary, it is the settled law in this State that it is the place where the animal gets upon the track and not where it is killed, that fixes the liability of the road. Ehret v. Railroad, 20 Mo. App. 251. In Brassfield v. Patton, 32 Mo. App. 572, it was held: “Railroad com/ panies are not liable to the owner of stock killed or injured unless it got upon the track at a place where the companies are by law required, to fence, no matter at what place it may be killed. ’ ’ A great many eases may be found to the same effect. In fact, under the statute, any other construction would be without reason to support it. And it has also been held that, “if the place of injury or killing’ be shown, it will be presumed, in the absence of anything to the contrary, that the animal strayed upon the track at that point. ’ ’ Pearson v. Railroad, 33 Mo. App. 543. In this case there was nothing’ to show that the animals got upon the track at the point where they were killed, but the presumption is rebutted by the evidence that there was a sufficient fence at that point to turn stock, and there were other circumstances going to show that they got upon defendant’s right of way through the open gate at said crossing. All the witnesses on that point testify that tracks were seen ap
The evidence showed that perhaps the gate in question was sufficient except it lacked proper fastenings to secure it when closed. It was not erected by the railroad company but by the tenant and his landlord, and there is no reason assigned why there was no provision made for securing it when closed. It has been held that if the proprietor of the land at the farm crossing was satisfied with a sliding gate at his farm crossing instead of a gate hung and fastened with a latch or hook, as prescribed by the statute, no one else has a right to complain, even though not as convenient to the owner as if it were hung with hinges and fastened with a latch. Harrington v. Railroad, 71 Mo. 384; Railroad v. Kavanaugh, 163 Mo. 54. But we know of no case where a railroad company would be excused for an entire failure to provide some fastening, at least, for gates that lead from a public highway over a farm crossing, although the owner may not require strict compliance with the statute in that regard. Such a gate in no way fastened would not be a substantial compliance with the requisitions of the statute and would not accomplish its purpose.
However, it was not shown whether at the time in question the gate came open by reason of its lack of a fastening or was left open, and under the proof it is immaterial. There was evidence that it had remained open for ten or fifteen days prior to the killing of plaintiff’s
It seems to us that the case was well tried and that the defendant under the pleadings and proof was clearly liable under the statute to plaintiff for damages for his horses killed. Cause affirmed.