36 Neb. 247 | Neb. | 1893
This is an action to recover the value of a horse of the defendant in error which was killed, it is alleged, by the fault of the plaintiff in error, and for injuries to another horse in the amount of $25. On the trial of the cause the jury returned a verdict in favor of the defendant in error for $140, with interest at seven per cent for one year and four months, and judgment was rendered thereon. There are four errors assigned in the brief of the plaintiff in error for a reversal of the case:
1. That the petition does not state a cause of action.
2. The court erred in giving instruction No. 8.
3. The court erred in giving instruction No. 1.
4. The court erred in refusing to give defendant’s instructions 1, 1½, and 2 asked by the plaintiff in error.
The errors assigned will be considered in their order.
The petition is as follows: “The plaintiff complains of the defendant, for that said defendant is a corporation organized under the laws of the state of Nebraska; that on or about the 31st day of December, 1889, the defendant was operating a railroad through Seward county, said road being opened for use and used for more than six months in said county; that said railroad of defendant runs through
It will be observed that the plaintiff below states two grounds for a recovery. First, that the gate was insufficient and known to be such; and second, negligently frightening the horses so that they ran upon the bridge and were injured. The act of June 22, 1867, provides that the railway company “shall, within six months after the lines of such railroad or any part thereof are open, erect and thereafter maintain fences on the sides of their said railroads, or the part thereof so open for use, suitable and amply sufficient to prevent cattle, horses, sheep, and hogs from getting on the said railroad, except at the crossings of public roads and highways and within the limits of towns, cities, and villages, with openings or gates or bars at all the farm crossings of such railroad, for the use of the proprietors of the lands adjoining such railroad, and shall also construct, where the same has not already been done, and hereafter maintain at all road crossings, now existing or hereafter established, cattle guards suitable and sufficient to prevent cattle, horses, sheep, and hogs from getting on to such railroad, and so long as such fences and cattle guards shall not be made after the time hereinbefore prescribed for making the same shall have elapsed, and when such fences and guards, or any part thereof, are not in sufficiently good repair to accomplish the objects for which the same is herein prescribed is intended, such railroad corporation and its agents shall be liable for any and all damages which shall be done by the agents, engines, or trains of any
“Sec. 2. Any railroad company hereafter running or operating its road in this state, and failing to fence on both sides thereof, against all live stock running at large at all points, shall be absolutely liable to the owner of any live stock injured,- killed, or destroyed by their agents, employes, or engines, or by the agents, employes, or engines belonging to any other railroad company or person, running over or upon any such road or there being.”
It is the duty of a railroad company to erect “ suitable and amply sufficient gates at all farm crossings.” We think sufficient is alleged to show that the gate in question did not conform to the statutory requirements and the proof fully sustains the allegations of the petition. The first objection is overruled.
2. The testimony tends to show that the railway in question runs through the lands of the defendant in error for a considerable distance; the railway company put in a farm crossing for him across the track Vith gates; that the gates are about eighteen feet in length and consist of four boards six inches in width and about seven-eighths of an inch in thickness. There are three cross-pieces to each gate, viz., one at each end and one in the middle. There were no hinges — the gates being held in place by an upright and cleats at each end. The testimony also shows that the railway fence at that place consists of four barbed wires; that the posts were not well braced and by reason of tightening the wires the posts were drawn out of perpendicular line, the effect of which was to render the gate too short
The instructions objected to are as follows: “If you find from the evidence that defendant, when it fenced its road through plaintiff’s land, put in a gate, but so negligently and carelessly kept up and maintained such gateway across its right of way that plaintiff’s horses passed through such gateway upon said defendant’s right of way and railroad and were killed or injured in consequence thereof, then you should find for plaintiff.” This conforms to the proof. The company is required to “ erect and maintain fences on the sides of the railroad suitable and amply sufficient to prevent cattle, horses, sheep, and hogs” from getting on said railroad. A gate is a part of a railway fence and like it must be sufficient for the purpose indicated. There was no error therefore in the giving of this instruction.
3. The first instruction is as follows: “The jury are instructed that the plaintiff brings this action to recover the sum of $150 against the defendant, for, on the 31st day of December, 1889, defendant then, by its servants and employes, negligently and carelessly causing one of said plaintiff’s horses to be killed and another to be injured and damaged, such horses being upon the defendant’s right of way at the time, and going thereon through a gateway across such right of way, which plaintiff alleges was kept in such negligent manner that such gate was left open so as to permit such horses to pass in upon said defendant’s right of way, and that being thereon, defendant, by its servants and employes, negligently and carelessly started
4. The instructions asked by the railway company and refused are as follows:
“The jury are instructed that under the statutes and laws of this state the defendant railroad company cannot be held liable for any injury done to plaintiff’s horses on the ground of negligence of defendant in not having or keeping the fence on the sides of its road, or any part thereof, or any gates therein, in sufficiently good repair to prevent horses from getting on its said railroad, or for any defect in said fence or gates alone, unless you find that the alleged injury to said horses was caused by actual collision with defendant’s locomotive, engine, or trains.
“ 1½. You are instructed that under the statutory law of this state, to make a railroad company liable for injury to stock for want of a fence, or for want of a sufficient fence such ás the law requires the company to erect and maintain to inclose its track, the injury to the stock must be caused by actual collision, that is, it must be done by the agents, engine, or cars of the company, or the willful misconduct of the trainmen in the course of their employment.
“2. You are further instructed that under the pleadings and evidence in this case the defendant cannot be held liable for any injury to plaintiff’s horses, unless you find that said horses were willfully driven or frightened onto said bridge by defendant’s employes in starting the train, said horses not having been injured by any actual collision or contact with the engine or cars of the train, and said engine and train of defendant’s having come to a stop before said horses, or either of them, went on the bridge where injured.”
These instructions were properly refused, as they do not
Affirmed.