Ehret v. Kansas City, St. Joseph & Council Bluffs Railway Co.

Hall, J. It is settled law in this state, “that it is the place where the animal got on the track, and not where it was killed, that fixes the liability of the road,” in a case based upon section 809, Revised Statutes. Moore v. Railroad Co., 81 Mo. 502; Nance v. Railroad Co., 79 Mo. 197; Cecil v. Railroad Co., 47 Mo. 246. It is equally well established that it is not the duty •of a railroad company to fence its railroad at public-crossings. Morris v. Railroad Co., 79 Mo. 371; Sullivan v. Railroad Co., 72 Mo. 197; MoPheeters v. Railroad Co., 45 Mo. 24; Meyer v. Railroad Co., 35 Mo. 352. This rule applies alike to all parts of the public road at the crossing, and not alone to the part in actual use by the public. A railroad is not required, nor would it be permitted, to fence any part of a public road. The failure of defendant to comply with section 809, is alleged, in the petition, to have been a failure to erect or maintain a fence on the side of its railroad. In this case, then, it is clear that, if the plaintiff’s steers got upon the railroad track at any point included in the public road, where said road crossed the railroad track, the plaintiff ivas not entitled to recover. This view was clearly expressed by the instruction given for the plaintiff, and by the instructions given for the defendant. In all the instructions given, the jury were plainly told that the plaintiff could recover only if the jury believed that the steers got upon the railroad track at a point not -within a public road. The plaintiff’s recovery was made to turn upon the place at which the steers got upon the railroad track without regard to the place at which they were struck by the engine. This was right. Instructions numbered three, four and five, asked by defendant, declaring a contrary doctrine, and making the plaintiff’s recovery depend upon the place at which the steers were struck, were properly refused. It is undoubtedly true that the burden of proving every fact essential to his recovery, rested upon the [259] plaintiff. The question is, “ did the evidence tend to prove that the steers got upon the railroad track at a point not within the public road ? ” As to the two steers which were killed from one hundred to one hundred and fifty feet south of the crossing, there was no evidence offered by plaintiff as to where they got upon the track, except the evidence of the point on the railroad track at which they were struck. From the evidence that the two steers were struck by the engine at a point on the railroad track one hundred, or one hundred and fifty feet south of the crossing, had the jury the right to infer that they got upon the track at that point ? The evidence showed that north and south of the crossing there was no fence along the railroad track, on the east side of it. The question, then, is, if the evidence show that there was no fence on the side of the railroad track at a certain point on the same, where, by law, a fence was required, and that, at that point, the animal was killed, is that sufficient evidence, nothing more appearing, upon ■which to submit to a jury the question, as to whether or not the animal got upon the track at the point at which there was no fence? This question we answer in the affirmative. Under such circumstances the evidence would justify the jury in inferring that the animal got upon the track at the point where there was no fence ; direct proof of such fact was not necessary. Gee v. Railroad Co., 80 Mo. 285. Therefore, had the plaintiff’s evidence stood alone, so far as the two steers killed one hundred or one hundred and fifty feet from the crossing are concerned, it would have justified the court in submitting the case as it was submitted in the instructions given. Did the evidence of defendant’s witnesses have the effect to change the case in this respect from what it would have been had the plaintiff’s evidence stood alone? We think not. Had the jury believed the defendant’s witnesses, it would have been their duty, under the instructions, to have found for defendant. The weight to be given to the evidence of plaintiff’s witnesses was to be determined by the jury. The weight of [260] that evidence, no doubt, might have been seriously affected by the testimony of defendant’s witnesses, but its character was in no way changed thereby. If the-jury believed the evidence of the. plaintiff’s witnesses in spite of the evidence of defendant’s witnesses, they were justified in making the same inference therefrom that they would have been justified in making, had defendant had no witnesses. In its argument to the contrary, and against the action of the trial court in refusing its instructions eight and nine, the defendant says: “It is not a question of credibility of witnesses, nor of conflict of testimony, but one in which the plaintiff, having made out his case, is met by proof on-the other side, not in denial of his, but which, admitting-the absolute truth of everything proved by him, goes, further and nullifies its effect by proof of other facts, which demonstrate that he has no right to recover. If not met by further proof, and if there be nothing to suggest its falsity, or the unworthiness of the witnesses, it must- compel a verdict for the defendant.” Whatever may be the law elsewhere, upon this question, in this, state it is-settled contrary to the defendant’s argument. In Kenney v. Railroad Company (80 Mo. 578), which was-“an action to recover damages for the property of plaintiff destroyed by fire, which .plaintiff alleges was-set out by defendant’s negligence,” the defendant contended that when it offered evidence of care on its part, and the evidence was uncontradicted, it was the duty of the trial court to declare, as a matter of law, that the-plaintiff ’ s prima facie case was rebutted. But the supreme court held against defendant’s contention. See,, also, Johnson v. McMurry et al., 72 Mo. 278. As to the two steers which were killed from thirteen to eighteen feet from the south side of the crossing there is more difficulty. The evidence introduced by the plaintiff tended to show that those two steers got upon the railroad track from eight to ten feet south of the crossing. The question is, “under such proof should the court have submitted to the jury the question as to [261] whether or not those steers got Upon the railroad track at a point not included in the public road % ” It devolved upon the plaintiff to establish the fact, by proof, that the said - steers got upon the railroad track at a point where there was no fence on the side of the same, and where, by law, a fence was required. And, as we have said, in a public road the defendant had no right to erect a fence. In this case, the plaintiff’s evidence tended to show that north and south of a certain public road crossing there was no fence on the side of the railroad track, and that the land, both north and south of said crossing, was unenclosed land, and that, therefore, it was the duty of defendant to erect and maintain a fence on the side of its railroad -at thát place. Had there been no evidence of the existence of a public road in this case, the plaintiff ’ s evidence would have made out a prima facie case, because it would simply have shown the absence of a fence at a place, where by law a fence was required, and that the two steers got upon the railroad track at such place.- This is certainly true. It was not necessary for the plaintiff to show by express or direct evidence that the steers did not get upon the railroad track at a place in the limits of a public road. Now what was the effect of the evidence concerning the public road ? If the defendant had, in its defence, introduced evidence of the existence of a public road ■crossing within eight or ten feet of the point at which the two steers got upon the railroad track, would it have been required of the plaintiff to show that that place was not within the public road ? We think not. There would, in that case, have been no presumption, one way ■or another, concerning the width of the public road, or as to what part of the public road the actual crossing was located on. We do not think that any other view can be taken of the effect of the evidence concerning the public road, because it was introduced by plaintiff. The evidence simply showed that a public road crossing was in the immediate vicinity of the place [262] at which the two steers got upon the railroad track. The evidence did not tend to show that that place was included in the public road. The evidence did show that that place was not in the part of the public road in actual use. Inasmuch as the evidence had no tendency'to show that that place was in the public road, if such was the fact, we think that the defendant should have shown it. At any rate, under such evidence the court was warranted in submitting the question to the jury as it was submitted in this case. There was not a failure of proof. Our conclusion is fortified by this additional consideration : Under our statutes the maximum width of public roads, opened by order of the county court, is sixty feet, but the minimum width of such roads is thirty feet. And the evidence in this case did not show that the public road had ever been opened by the county court, so the public road in proof may have been such by prescription merely, in which case its width would have been' determined and fixed by the actual travel and use by the public. Judgment affirmed. All concur.