White v. Sligo & Eastern Railroad

STURGIS, J. This action is under section 3146, Revised Statutes 1909, for injuries resulting in death to plaintiff’s horse by reason of being frightened and run by a passing locomotive and train into an open culvert through defendant’s roadbed. The fact that the animal came onto the right of way from an adjoining pasture by .reason of a defective fence is hardly controverted; in fact, the defendant seeks to avoid responsibility for the condition of the fence by reason of the act of a former owner of the land moving and changing the fence from its original location and condition. The evidence shows that the animal escaped onto the right of way where the barbed wire fence was loose and flat on the ground. . It can hardly be doubted from the evidence that the animal was injured by trying to cross this open culvert. It was found on the right of way twenty-eight-feet from the culvert with one leg broken below the knee and another skinned and bruised. The injured [429] animal was with several others, also found on the right of way further down the track, and the culvert showed prints of horses’ tracks leading to the culvert and on the ties over the same and signs of a horse’s foot having slipped between the ties. There were also signs that a horse had fallen or rolled off this culvert down on the ground, horse tracks being found there also., The main controversy at the trial was as to whether the animal had been injured before the train came along and was then standing on the right of way injured, or was frightened and run into the culvert by defendant’s train. This issue was sharply drawn both in the evidence and by the instructions. The jury found for plaintiff and, if there is. any substantial evidence to support that finding it is conclusive here. Plaintiff’s evidence is largely circumstantial, though there is direct evidence that the train was whistling near the place of the injury at the time thereof and that the other animals, companions of the one injured, were seen running ahead of the train, though some distance therefrom, at a place a short distance beyond the point of the injury. The point in dispute is whether these animals, and particularly the one injured, were frightened and run by the coming train before reaching the culvert and before the injury, or was this one injured before the train came along and the others frightened and run only after the culvert was passed both by such animals and the train. If plaintiff’s evidence is to be believed, the horses’ tracks were continuous through the down place in the fence, up the embankment onto the track, and down the track to the culvert beyond. Defendant’s employees running the train say the animals were not on the track, at least in sight, and no whistle was sounded until after the train passed the culvert and the injured animal standing there and that the whistle was because of the other animals further down the track. That, .the animals may [430] have been frightened or caused to run down the track over this culvert before any whistle was sounded or even before the animals were seen by the trainmen, on account of curves in the road and consequent obstructions, was a fact to be determined by the jury. Emphasis is laid on the fact that there is no evidence that this animal was “running” before and at the time it went onto this culvert. We think, however, that the statute has little reference to the speed at which an animal may be going; provided the train, by fright or otherwise, causes it to go onto a culvert, such as this, and be injured thereby. It is unnecessary for us to set out and analyse all the evidence on this point and we dispose of it by holding, after a careful reading of the same, that there is substantial evidence to sustain the verdict. [Brown v. Railroad, 104 Mo. App. 691, 78 S. W. 273; Lynn v. Railroad, 164 Mo. App. 445, 146 S. W. 451; Carlos v. Railroad, 106 Mo. App. 574, 80 S. W. 965.] Plaintiff’s instruction is criticised as ignoring the element of liability as to defendant having actual or constractive notice of the defective fence; but, the uneontradicted evidence is that the fence had been down for several months, which is constructive notice as a matter of law. [Hax v. Railroad, 123 Mo. App. 172, 177, 100 S. W. 693.] It is immaterial to this case whether there is a difference between a “good fence . . . such as is by law required,” as specified in the statute, or a “lawful” one, as required and defined by the instructions. The undisputed evidence is that defendant had neither one. [Morrison v. Railroad, 162 Mo. App. 662, 666, 145 S. W. 137.] Nor does it matter whether the fence originally came up to the standard or not. (Hax v. Railroad, 123 Mo. App. 172, 177, 100 S. W. 693), since defendant is imperatively required to keep it good and lawful at all times. In Whiteman v. Railroad, 163 Mo. App. 228, 231, 146 S. W. 97, it is said: “The obligation [431] of a railroad company to fence begins with the operation of trains on the road and the obligation to maintain lawful fences enclosing the railroad continues during the life of the railroad.” [Morrison v. Railroad, 162 Mo. App. 662, 665, 145 S. W. 137.] Defendant seeks to excuse its liability for the defective fence by proving that some two years prior to this injury the then owner of the land, the deceased husband of the present owner, from whom she acquired it by will, had moved and changed the fence originally erected by defendant on the margin of its right of way at the place where the animals came on the same. This was done because a small creek passed from the land in question through the right of way at this point and to avoid washing and drift against the fence. The fence was there turned in on the right of way to connect with the bridge under the track. The defendant acquiesced in this change. The court instructed the jury that if in doing this the fence was constructed as safe and secure as it was before removing it, it became defendant’s duty to maintain and keep it in good condition. This is good law. Besides this, plaintiff was a tenant of the landowner and had no notice, as far as the evidence shows, of any express or implied agréement by the former landowner to exempt the defendant from this kind of liability. The railroad was therefore liable to the tenant whether it would be to the land owner or not. [Thomas v. Railroad, 82 Mo. 538; Crow v. Railroad, 23 Mo. App. 357.] Nor would such a parol agreement run with the land so as to bind the present owner. [Thomas v. Railroad, supra.] Finding no substantial error, the judgment will be affirmed. Robertson, P. J., concurs. Farrington, J., concurs.