Jones v. Chicago, Burlington & Kansas City Railway Co.

Smith, P. J. This case was here on another occasion, as maybe seen by reference to 52 Mo. App. 381. The nature of the case then, as now, there sufficiently appears. The judgment was then reversed and the cause remanded. There has been since then another trial resulting in a judgment for plaintiff and from which defendant has appealed. The instructions given for plaintiff are so manifestly erroneous and repugnant to those for the defend [141] ant that we feel compelled on that account to reverse the judgment. The plaintiff’s first instruction told the jury that if the plaintiff’s mare.got upon defendant’s railway by crossing or jumping over a cattle guard which was defective and insufficient to prevent horses from getting on said railway, then the plaintiff was entitled to recover. The second for the plaintiff further told the jury that it was the duty of defendant to construct and maintain cattle guards where fences are required on all public roads sufficient to prevent horses, cattle, mules and all other animals from getting upon its railway; and if they believed that the cattle guard in question when and where plaintiff’s mare is alleged to have gotten on the defendant’s railway, was not sufficient to turn horses, cattle and other domestic animals, then to find for plaintiff. A similar instruction was examined, and condemned by us, in Cole v. Railway, 47 Mo. App. 624. We there said that a cattle guard that is ordinarily sufficient to turn stock is sufficient within the meaning of the statute. Under the plaintiff’s instruction the jury there, as here, were authorized to find for the plaintiff if his mare passed over defendant’s cattle guard without reference to whether it was ordinarily or usually sufficient to prevent stock from crossing it or not, in other words, if the guard did not turn plaintiff’s mare, that that was enough to establish its insufficiency. The statute introduces no such test of sufficiency. The term “sufficient” as employed in the instruction should have been preceded with some such qualifying adjective as ordinary, usual or general. The language of the .instruction too much restricted the jury’s field of inquiry. ' ' • A railway company is certainly not char-geable as an absolute insurer of the efficiency of its guards under [142] every circumstance. It was not the purpose of the statute to require the railway companies of this state to construct and maintain cattle guards, not only sufficient to ordinarily or usually prevent horses, cattle, mules and other animals from getting on their railways, but to be sufficient to turn animals that are wild, breachy, or have the habit of fence jumping, or are under fright or excitement. A construction of the statute requiring this would be unreasonable and absurd. The plaintiff’s instruction in this case contains a like vice for which that in Cole v. Railway, was condemned by us. The- instructions given for the defendant were in accord with our ruling in the Cole v. Railway case, and are, therefore, in irreconcilable conflict with those of the plaintiff. The latter were misleading and confusing and should not have been given. The propriety of the action of the trial court in permitting the plaintiff to amend his statement can not be questioned here, since it does not- appear from the record that an objection was in any manner interposed thereto in that court. Hubbard v. Quisenberry, 28 Mo. App. 20. The question of whether the cattle guards were ordinarily, usually, or generally sufficient or not was a question for the jury under the evidence, and more especially so since the same was conflicting. Railway v. Neidbrander, 40 Ohio St. 15; Swartzel v. Railroad, 4 Hun (N. Y.), 571. The size of the cattle guard, the kind of timber of which it was built, the distance apart at which the timbers were laid, the depth of the pit, etc., were matters for the jury. 4 Hun, supra; 3 Wood on Railways, sec. 419. If the cattle guard was ordinarily sufficient to turn stock and the plaintiff’s mare jumped over it and passed onto the defendant’s railway track where she had no right to be and was then'struck and [143] killed, the defendant was not liable therefor. We can not say there was absolutely no evidence adduced of the ordinary insufficiency of the cattle guard to justify the submission of the case to the jury. We think under appropriate instructions it was the duty of the court to leave it to the jury to determine the issue from all the evidence adduced. For the error in the giving of instructions for the plaintiff the judgment will be reversed and the cause remanded. All concur.