Kansas, Oklahoma & Gulf Ry. Co. v. Keirsey

Arnold, justice. ■ Plaintiff Cliff Kiersey filed his petition in the District Court of Bryan County seeking to. recover damages against Kansas, Oklahoma & Gulf Railway Company fqr the death of a cow. The court overruled defendant’s demurrer to the petition; defendant excepted and declined to plead further; the court entered judgment in favor of plaintiff for the amount prayed. From such judgment'defendant brings this appeal. Plaintiff alleged in his petition that on June 30, 1952, he was the owner of a blue roan cow of the valúe óf $180; that this ■cow was kept in' a pasture through which passed defendant’s railroad tracks; that at the point where the tracks crossed a highway and entered plaintiff’s pasture defendant had constructed a cattle guard; that plaintiff’s cow walked across the cattle guard and ate newly-cut Johnson grass, which was across the cattle guard and on the highway and which had been cut a few days before by defendant’s employees, from which the cow died; that .the cow’s death was due to the negligence of defendant in that it constructed the cattle guard flat on the ground and failed to excavate underneath the cattle guard, which rendered the guard ineffectual, and that it failed to fence its right of way. 66 O.S.1951 § 141 provides that it is the duty of a railroad to fence its road, except at public highways and station grounds, with a good and lawful fence, and -Section 144 provides that upon its failure to build such fence it shall be liable for all animals killed by reason of such failure to construct a fence. We have held that these statutes impose liability without proof of negligence only for injuring cattle upon the track by operation of the railroad trains. Missouri, O. & G. Ry. Co. v. Brown, 46 Okl. 735, 148 P. 1040; Kurn v. Immel, 184 Okl. 571, 89 P.2d 308. Plaintiff’s petition shows on its face that the cow was killed not by operation of the- railroad but by eating Johnson grass. It therefore stated no cause of action under the statute. At common law there was no duty of a railroad company to fence its right of way against cattle. Missouri, O. & G. Ry. Co. v. Brown, supra. Likewise there was no duty at common law to construct cattle guards to prevent the intrusion of cattle. Plaintiff’s petition does not state a cause of action at common-law since the allegation of negligence concern the cattle guard and the failure to fence. . Demurrer to plaintiff’s petition should have been sustained. Reversed. ' HALLEY, C. J., JOHNSON, V. C. J., and CORN, O’NEAL and WILLIAMS, JJ., concur. WELCH, DÁVISON and BLACKBIRD, JJ., dissent. .