West v. Missouri Pacific Railway Co.

Hale, J. The question is, did the facts in evidence, and set out in the agreed statement of facts justify the finding of the court in favor of plaintiff % The facts, in brief, are, that the mule went from the plaintiff’s field into Knoche’s field through Knoche1’s fence, which was down, and had been down for a long time, and that the mule went from Knoche’s field onto the defendant’s right of way, through a gate in defendant’ s railroad fence at Knoche’s private crossing, which gate was then open, and had been open, from September to December 13,1883, and that the mule got upon the defendant’s railroad track, was run over and killed. The plaintiff ’ s mule was not a trespasser on Knoche’s field. That field was not enclosed with a lawful fence, and [348] the mule, therefore, having entered the field through the defective fence, was within the protection of the statute. Berry v. Railroad, 65 Mo. 172; Peddicord v. Railroad, 85 Mo. 160. The defendant was not shown to have left the gate open, and, generally speaking, the defendant was not liable on account of the gate being left open by third parties. Binicker v. Railroad, 83 Mo. 662. While this is true, generally speaking, it is clear that the meaning of the statutory requirement that railroad companies shall erect and maintain fences with gates and bars, etc., is, that the railroad companies shall maintain the gates closed. “The law requires these companies to fence the track of their roads with sufficient fences to turn stock, and, after erecting them, to keep them in. repair. The statute also requires to put in gates at farm crossings. These gates are a part of the fence, and the duty to keep their fences in repair includes the duty to keep them safe and securely closed, so as to afford equal protection from stock getting upon their roads at such places as at other points.” Railroad v. Harris, 54 Ill. 530; Railroad v. Arnold, 47 Ill. 173, If third persons opened the gate, the defendant would not have been liable on account of the gate being open, unless it had notice of the fact that the gate was open, or could have known that the gate was open by the use of ordinary care and diligence. For a railroad company to permit a gate, such as the gate in suit, to remain open when it knows, or might, by ordinary care, know, that the gate is open, is negligence under the statute, and is a failure to erect and maintain the gate in the meaning of the statute. “ While the company were not required to keep such a guard on their road as would see a breach at the instant it occurred, and repair it at the time, still the law requires them to keep such a force as may discover such breaches and openings in their fences, and to close them in a reasonable time. And to neglect doing so, for a week or more, is a neglect of duty that will ordinarily render it liable for the injury ensuing therefrom.” [349] Railroad v. Harris, 54 Ill. 530. The gate in suit remained open from September to December 13, and the-defendant must be presumed to have known that it was-open, and must be held liable for all injuries caused by permitting it to remain open. In- our opinion, the judgment of the circuit court was proper and should be affirmed. It is so ordered. All concur.