27 Mo. App. 418 | Mo. Ct. App. | 1887
This is an action to recover damages, under the double-damage act, for the killing of plaintiff’s horse by one of defendant’s trains of cars. The imputed act of negligence was the failure of defendant to keep a certain gate, placed by it as a private opening on plaintiff’s farm, in repair, and for carelessly and negligently suffering the same to be “left out of repair and open.”
The evidence was that the plaintiff lived about one mile and a half west of Harlem station, in Clay county. Defendant’s railroad runs through plaintiff’s farm. Near the farmhouse defendant had erected a gate for a private farm crossing. The gate was made of wire and boards. One of the posts had rotted off, so that it was supported entirely by the wires and planks. It had no latch or other fastenings. The only way it would open
Plaintiff’s evidence tended to show that, on the evening prior to the loss of his horse, he had closed this gate, on passing through it; that his horse escaped that night from his stable, and passed through the gate on to the railroad track, and was traced by the plaintiff, and other witnesses, from this point along defendant’s track to where he was found dead, which was at a point west of the station of Harlem. The animal was torn literally into fragments. Prom Harlem station west to and over the bridge spanning the river, the defendant’s cars run over the right-of-way and track of the Hannibal & St. Joseph Railroad Company, subject to the time1 tables, etc., of the latter road, but in charge of defendant’s employes and servants.
I. The first contention of defendant is that there was no evidence to support the verdict, that the animal was killed by one of defendant’s trains. It is true that other trains than those of the defendant ran over this track from Harlem west into Kansas City ; so that there . was a possibility for the collision to have occurred with some other train. But on careful examination of the evidence we are satisfied there was ample proof to entitle the plaintiff to the opinion of the jury. In the first place the evidence showed conclusively that the horse entered upon defendant’s track, west of the junction with the Hannibal track, and his tracks indicated that, from some cause, he was trotting and then running along this track, and had leaped over defendant’s cattle-
II. The chief contention on the part of defendant,, and the only questions of any merit raised on this appeal, are as to its liability for the failure to keep the gate in repair, and the further incidental question whether the injury was occasioned by such neglect. Appellant contends that the gate being for the private accommodation of •the adjacent land owner, it was not required to keep the same in repair; and, at all events,, it was as much the duty of the plaintiff to look after the gate, and notify the defendant of its imperfect condition, as it was the duty of defendant to repair it.
The first question is answered by the statute. Section 809 declares that, every railroad company “shall erect and maintain lawful fences on the sides of the road where the same passes through, along, or ad joining-inclosed or cultivated fields, or uninclosed lands, with openings and gates therein, to be hung and have latches- or hooks, so that they may be easily opened and shut, at all necessary farm crossings of the road, for the use of the proprietor or owner of the land adjoining such railroad, and also to construct and maintain cattle-guards-where fences are required, sufficient to prevent horses,, etc., from getting on the railroad; and until fences,, openings, gates, and farm crossings, and cattle-guards, as aforesaid, shall be made and maintained, such corporations shall be liable in double the amount of all damages which shall be done by its agents, engines, or cars, to horses, etc., escaping from or coming upon said lands, fields, or enclosures, occasioned in either case-by the failure to construct or maintain such fences or
From which it is too clear for question that the obligation to maintain the gate is the same as to erect it in the first instance. But .it is further argued, with much plausibility, that the statute does not, in terms, impose the double liability for a failure to erect and maintain the gate. This is based on the concluding clause of the section above quoted, “by the failure to construct or maintain such fences or cattle-guards.” The argument is that it omits to name the gate in this connection, and this being in the nature of a penal statute, it must be strictly construed, which is more specious than sound. The whole section must be taken into consideration. Throughout, the duty to build and maintain the gate is expressly imposed upon the company. This section deals exclusively with the double-liability penalty, and was designed to, inflict it upon the corporation for any •disregard of its mandates. If the double liability does not apply to the omission to maintain the gate, no penalty, or damage whatever, is imposed by the statute. But the patent vice of the argument of counsel lies in not recognizing the fact that the gate is part of the fence itself. The language of the statute leaves no reasonable ground for questioning this fact. The corporation shall “ erect and maintain lawful fences * * * with openings and gates therein.” The preposition “ with ” shows that the gate is a part of the fence. This opening is merely for the accommodation of the farmer, .and the fence must be made with a gate, and so maintained. So when the conclusion of the sentence is “by the failure to construct and maintain such fences,” it means, necessarily, the fences prescribed in the preceding part of the section, “ with openings and gates.” The succeeding clause of the section, “after such fences, gates, •etc., shall be duly made and maintained, said corpora
The gate has ever been regarded by the Supreme Court as part of the fence, and the railroads as liable for double damages for failure to keep them in repair. Binicker v. Railroad, 83 Mo. 660; Fitterling v. Railroad, 79 Mo. 505. The suggestion that it was as much the duty of the plaintiff to watch and keep the gate closed, and in repair, as that of the defendant, we must hold not well taken. So far as this jurisdiction, at least, is concerned, this question has passed in rera judicatura. Parks v. Railroad, 20 Mo. App. 442; Davis v. Railroad, 19 Mo. App. 415; Solver v. Railroad, 78 Mo. 528; West v. Railroad, 26 Mo. App. 344.
III. The more important contention of appellant is, that inasmuch as the horse escaped onto the track by reason of the gate probably being left open in the nighttime, by some third person passing through it; and there being no proof that defendant had notice of the open condition of the gate, in time to have it closed before the horse escaped, it is not liable. It has been repeatedly held, by the Supreme Court of this state, that after the railroad company has erected the gate, required by statute, it is not expected to stand perpetual guard over it to keep it closed against the act of third parties in leaving it open; and that if stock escape thus, before the servants of the company have notice of the fact of the gate being open, or reasonable time .in which to discover the fact, no liability attaches.
The strongest case of this character, favorable to the defendant, is that of Ridenour v. Railroad (81 Mo. 227).
Such a gate was not the one required by the statute. The gate must “ be hung and have latches, or hooks, so that it may be easily opened and shut” One of the-objects of this specific requirement, I take it, was to guard against the very contingency of the gate being left open when not “easily opened and shut.” This gate, in contemplation of the statute, was not hung. It possessed scarcely any of the statutory requirements. And the sooner the railroad companies learn, and act upon it, that such gates are mere excuses, and evasions of the law, the better for them and the public. It is furthermore a distinguishing feature of this case, that the direct consequence of the obvious defect in this gate was its constant liability to be left open, and the exposure, day and night, of plaintiff’s stock to escape through it onto the railroad track.
The only question, therefore, to be decided is, did the neglect to keep this gate in repair, in the manner shown by the evidence, occasion the injury complained of? In the cases decided by the Supreme Court, it
It was upon this idea that it was held in Byrne v. Wilson (15 Irish Crim. Law, 332-342), that the owner of a stage coach was responsible where the driver, through negligence, precipitated the coach into a dry canal, and the lock-keeper thereafter carelessly opened the gates of the canal and a passenger was drowned. O’Brien, J., said : “It is true that the subsequent letting of the water into the lock was the other, and more proximate, cause of her death, and that she would not have lost her life but for such subsequent act, which was not the neces
IY. We have not reviewed the instructions in detail, so elaborately argued by counsel, for the reason, that the only question of fact about which there could be any reasonable controversy, was whether the defendant’s cars collided with the horse. This issue was sharply put to the jury in the instructions given by the court. The facts respecting the condition of the gate, and the escape of the horse through it being almost indisputable, the only question was as to the law raised by the appellant at this bar. The jury having found the issue for the plaintiff as to the actual collision, it
the judgment of the circuit court is affirmed.