Boggs v. Missouri Pacific Railway Co.

Opinion by Ellison, J. The defendant fenced its track through plaintiff’s pasture with barbed wire and posts sixteen feet apart. Several months before the injury to plaintiff’s mule, defendant, in repairing a culvert, left a gap in the fence, so that stock might stray from the pasture through the gap into defendant’s right of way. When stock were once on the right of way between the wire fences, there were no means of getting out except through the gap at which it entered; and that, on a train approaching from the south, there would be no escape for frightened stock except to run back, meeting the train, or by jumping •over or through the fence, unless we would suppose the animals would stand still beside the track. Plaintiff’s was the only evidence offered. The only instructions offered by either party was a demurrer to the evidence asked by defendant and refused by the court. There was .a verdict for plaintiff for one hundred and eighty dollars, .and defendant appeals. Plaintiff’s evidence tended to •show that he heard a train from the south, and saw his mares and colts, with which his mule was running, coming towards the house, but did not see his mule. On going immediately down to the track he found the mule had entered the right of way through this gap. He [278] found where it got out of the enclosure by jumping the wire fence. He found hair and blood on the wires, and found blood running from the mule. Prom the fact of this injury happening without contact with the animal by the train, the action is not under and could not be maintained under section 809, Revised Statutes 1879, but defendant may nevertheless be liable in a common law action for negligence in failing to comply with a statutory duty. Goodwin v. Ry. Co., 75 Mo. 73. By leaving the gap from December till June, de-. fendant failed to maintain the fence as required by law. The animal in question got into the inclosure by reason of the gap, and there being no means of escape except through or over a barbed wire fence, four or four and one-half feet high, we think the injury must naturally be expected to follow. The accident happening in this case is just such an one as might have been expected, and should have been foreseen and provided against. Leaving the fence down was the original negligence in the case, and “not having been provided against, the original negligence continued and remained a culpable and direct cause of the injury, and the test is to be found in the probable injurious consequences, which were to be anticipated, not in the number of subsequent events and agencies which might arise. As a legal proposition, we may consider it established that the fact that the plaintiff’s injury is preceded by several independent conditions, each one of which is an essential antecedent' of the injury, does not relieve the person by whose negligence one of these antecedents has been produced from liability for such injury.” Nagel v. Railroad, 75 Mo. 653. We think the judgment should be affirmed, and it is so ordered.