Atchison, Topeka & Sante Fé Railroad v. Shaft

The opinion of the court was delivered by YaleNTINE, J.: This was an action brought by-Clay Shaft against the Atchison,.Topeka & Santa Fé Railroad Company, in the district court of Chase county, to recover damages for the killing of a steer belonging to the plaintiff. The allegations of the plaintiff’s petitition were such that he. might have — 526 — recovered either under chapter 94 of the statutes of 1874, because of a want of a legal fence inclosing the defendant’s railroad, (Comp. Laws of 1879, pp. 784,785, ¶¶ 4915 to 4919,) or under chapter 93 of the Laws of 1870, for negligently killing the plaintiff’s animal, (Comp. Laws of 1879, p.784, ¶4913, or under the rules of the- common law for negligently killing the same. It is admitted in the present case that the defendant killed the plaintiff’s animal in the operation of its railroad, and that the defendant’s railroad was not inclosed with a good and lawful fence, or any fence, where the animal was killed; and while the defendant claims that the railroad should not have been inclosed where the animal was killed, and that the defendant was not guilty of any negligence in killing the same, and that the plaintiff was guilty of contributory negligence in permitting his animal to run at large,.the plaintiff on the other hand claims that the railroad should have been inclosed, and also that the defendant killed his animal not only through negligence, but through gross negligence, and that the plaintiff was without fault on his part. Sections 1 and 5 of said statute of 1874 read as follows: “SECTION 1. Every railway company or corporation in this state, and every assignee or lessee of such company or corporation, shall be liable to pay the owner the full value of each any [and] every animal killed, and all damages to each and every animal wounded by the engine or cars on such railway, or in any other manner whatever in operating such railway, irrespective of the fact as to whether such killing or wounding was caused by the negligence of such railway company or corporation, or the assignee or lessee thereof, or not.” “Sec. 5. This act shall not apply to arty railway company or corporation, or the assignee or lessee thereof, whose road is inclosed with a good and lawful fence to prevent such animals from being on such road.” Section 1 of said statute of 1870 reads as follows: “Section 1. That railroads in this state shall be liable for all damages done to person or property, when done in consequence of any neglect on the part of the railroad companies.” — 527 — There is no exp-ess exception to, or limitation upon, or modification of, any of the provisions of the foregoing sections by any other statute, and none except such as is found in said § 5;. and if there is any exception, limitation or modification of any of the foregoing sections, other than that contained in said § 5, it must be such only as arises by implication, or by judicial construction or interpretation. In other words, under chapter-94 of the statutes of 1874, and upon its face, a railroad company is liable in all cases for injuries done to animals in the operation of its railroad, except where the railroad is inclosed with a good and lawful fence; and expressio wnius est exclusio-alterius. And upon the face of chapter 93 of the Laws of 1870, a railroad company is liable for “any neglect” on its part which causes injury. The words “any neglect” have been construed to mean “ ordinary negligence,” and the language of' the act does not overturn or destroy, or even disturb, any of the rules of the common law with regard to “contributory negligence.” (St. J. & D. C. Rld. Co. v. Grover, 11 Kas. 302; K. C.. Ft. S. & G. Rld. Co. v. McHenry, 24 id. 501.) In the nature of things, however, there must be some limitations upon the terms of the language used in said chapter-94 of the Laws of 1874. It would be improper for a railroad company to inclose its road where the same crosses a public street or highway, for such a thing would do violence to other-provisions of the statutes of the state. This is also true even where the place crossed is only a highway defacto. (A. T. & S. F. Rld. Co. v. Griffis, 28 Kas., 539; same case, 13 Am. &. Eng. Rld. Cases, 532.) It has also been held by some of the courts that even a railroad depot or station is of such a public character that it would be-improper for a railroad company to fence its road at such place. (Davis v. R. & M. R. Rld. Co., 26 Iowa, 549; Durand v. C. & N. W. Rly. Co., 26 id. 559; Smith v. C. R. I. & P. Rld. Co.,. 34 id. 506; Cleveland v. C. & N. W. Rly. Co., 35 id. 220; Latty v. B. C. R. & M. Rly. Co., 38 id. 250; Kyser v. K. C. St. J. & C. B. Rld. Co., 56 id. 207; G. & C. U. Rly. Co. v. Griffin, 31 Ill. 303; I. & St. L. Rld. Co. v. Christy, 43 Ind. 143; — 528 — Lloyd v. Pac. Rld. Co., 49 Mo. 199; Swearingen v. M. K. & T. Rld. Co., 64 id. 73; Robertson v. A. & P. Rld. Co., 64 id. 412; F. & P. M. Rly. Co. v. Lull, 28 Mich. 510; C. & G. T. Rly. Co. v. Campbell, 47 id. 265; same case, 7 Am. & Eng. Rld. Cases, 545.) And tliere are other cases which go even beyond this, and hold that a railroad company is not required to fence its road where it adjoins mills or machine-shops, or some other kind of property belonging to the railroad company or to private individuals. (8 Ind. 402; 35 id. 515; 50 id. 349; 20 id. 231; 45 id. 496; 82 id. 593.) The great weight of authority however is, that railroad companies are not absolved from complying with the express terms of the statutes requiring them to inclose their roads with good and lawful fences, except where some paramount interest of the public intervenes, or some paramount obligation or duty to the public rests upon the railroad companies rendering it improper for them to fence their roads. (Tracy v. T. & B. Rld. Co., 38 N. Y. 433; Bradley v. B. N. Y. & E. Rld. Co., 34 id. 427; C. & P. Rld. Co. v. McConnell, 26 Ohio St. 57; Rld. Co. v. Newbrander, 40 id. 15; same case, 11 Am. & Eng. Rld. Cases, 480; Whitewater Valley Rly. Co. v. Quick, 30 Ind. 385; C. C. C. & I. Rly. Co. v. Crossley, 36 id. 370; T. W. & W. Rly. Co. v. Chapin, 66 Ill. 504; Latty v. B. C. R. & M. Rly. Co., 38 Iowa, 250; Mundhenk v. C. I. Rld. Co., [Sup. Ct. of Iowa,] 11 Am. & Eng. Rld. Cases, 463; Flint & P. M. Rld. Co. v. Lull, 28 Mich. 510.) No private interest or convenience or inconvenience on the part of a railroad company will alone be sufficient to absolve it from fencing its road, where the statute in express terms requires that the road shall be fenced. (Tracy v. T. & B. Rld. Co., 38 N. Y. 433; Comstock v. DesM. Val. Rld. Co., 32 Iowa, 376; Morris v. St. L. K. C. & N. Rld. Co., 58 Mo. 78; Beliefontaine Rly. Co. v. Reed, 33 Ind. 476; P. C. & St. L. Rly. Co. v. Laufman, 78 id. 319; Mundhenk v. C. I. Rld. Co., [Sup. Ct. Iowa,] 11 Am. & Eng. Rld. Cases, 463.) Nor will any private interest or convenience on the part of individuals be sufficient to absolve a railroad company from fencing its railroad in like cases. (I. C. Rly. Co. v. Leamon, 18 — 529 — Ind. 173; Indianapolis &c. Rld. Co. v. Thomas, [Sup. Ct. of Indiana,] 11 Am. & Eng. Rld. Cases, 491; P. &c L. E. Rld. Co. v. Ounnington, [Sup. Ct. of Ohio,] 13 Am. & Eng. Rld. Cases, 529; R. P. &c J. Rld. Co. v. Barton, 80 Ill.72; McKinley v. C. R. I. & P. Rld. Co., 47 Iowa, 76; Mackie v. C. Rld., 54 id. 540.) The cases last cited have reference to the crossings of railroads over private roads. There are numerous cases holding that railroad companies- are required to fence their roads in cities, towns, and villages, except where the railroads cross some public street, alley, or other public place, and where it would be improper to fence the roads, notwithstanding any inconvenience to the railroad companies, or to others. (U. P. Rly. Co. v. Dyche, 28 Kas. 200; same case, 1 Pac. Rep. 243; Crawford v. N. Y. C. & H. R. Rld, Co., 25 N. Y. S. C. Rep. 108; Brace v. N. Y. C. Rld. Co., 27 N. Y. 269; Ells v. Pac. Rly. Co., 48 Mo. 231; Iba v. H. & St. J. Rld. Co., 45 id. 469; J. M. & I. Rld. Co. v. Parkhurst, 34 Ind. 501; T.W. & W. Rly. Co. v. Howell, 38 id. 447; I. P. & C. Rld. Co. v. Lindley, 75 id. 427; Wabash Rly. Co. v. Forshee, 77 id. 158; P. C. & St. L. Rly. Co. v. Laufman, 78 id. 319; C. & P. Rld. Co. v. McConnell, 26 Ohio St. 57.) Under the statutes, railroads must be “inclosed.” In the language of the statute, they must be “ inclosed with a good and lawful fence,, to prevent such animals from being on such road.” (Laws of 1874, ch. 94, § 5.) Building fences along the sides of the railroad is not alone sufficient. The railroads must be “inclosed” as aforesaid, with fences or other barriers; and whenever for that purpose cattle-guards are necessary at the crossings of public highways or other public places, cattle-guards must be put in. (U.P. Rly. Co. v. Harris, 28 Kas. 206; Mo. Pac. Rly. Co. v. Manson, 31 id. 337; same case, 2 Pac. Rep. 800; Mo. Pac. Rly. Co. v. Morrow, 32 Kas. 217; same case, 4 Pac. Rep. 87; N. A. & S. Rld. Co. v. Pace, 13 Ind. 411; P. C. & St. L. Rly. Co. v. Eby, 55 id. 567; Bradley v. B. N. Y. & E. Rld. Co., 34 N. Y. 427; Tracy v. T. & B. Rld. Co., 38 id. 433; P. P. & J. Rld. Co. v. Barton, 80 Ill. 72; Flint & P. M. Rly. Co. v. Lull, 28 Mich. 511; Cleveland &c. Rld. Co. — 530 — v. Newbrander, 40 Ohio St. 15; same case, 11 Am. & Eng. Rld. Cases, 480; Mundhenk v. C. I. Rld. Co., [Sup. Ct. of Iowa,] 11 Am. & Eng. Rld. Cases, 463.) “The fact that a railroad-crossing is at or near a depot, and that to construct a cattle-guard there would inconvenience the company, will not excuse it from complying with the positive requirement of the statute requiring such protection to be provided.” (Tracy v. T. & B. Rld. Co., 38 N. Y. 433; Bradley v. B. N. Y. & E. Rld. Co., 34 id. 427.) “ Where stock is killed on a railroad switch at a point where it is unnecessary to keep the road open in order to transact business, the company will be liable without proof of negligence.” (Morris v. St. L. K. C. & K. Rld. Co., 58 Mo. 78; Comstock v. DesM. Val. Rld. Co., 32 Iowa, 376.) Upon all the foregoing propositions, valuable notes may be found in the American and English Railroad Cases, especially in 7 Am. & Eng. Rld. Cases, 577, et seq.; 11 Am. & Eng. Rld. Cases, 496, et seq.; and 13 Am. & Eng. Rld. Cases, 533. In the case of the P. C. & St. L. Rly. Co. v. Laufman, 78 Ind., 320, it is said that — “ The statutory rule is, that railroad companies shall be liable for injuries done by their locomotives or cars to animals at places where the roads might be, but are not, fenced; and it is not the province of the courts to create exceptions to the rule, or to interfere with legislative policy.” This meets with our approval. But whenever it appears from the general course of legislation that the public have a paramount interest in having particular portions of the railroads of the state unfenced, we shall hold that the statutes requiring railroads to be fenced have no application to such places, and that the railroad companies are not required to fence their roads at such places. This exception to the general rule requiring railroad companies to fence their roads, will apply to all public highways, including streets and alleys in cities, towns and villages; and, for the purposes of this case, we shall assume that it will also apply to all railroad depots and stations where the public generally do business with the railroad com531 pañíes; and yet the railroads themselves, or in other words the railroad tracks, might very well be fenced at the companies’ depots and stations. All the railroad tracks might be located on one side of the depots or stations, and the public have access to such depots or stations from the other side — the depots or stations forming a part of the inclosure. This would prevent stock from getting on the railroad tracks. This brings us to the question whether the defendant’s railroad should have been fenced where the animal in the present case was killed. The court below upon the evidence found that— “At Crawford station, in Chase county, Kansas, the defendant owns a strip of land 250 feet wide and 2,400 feet long, which is used as its station grounds at that point. That the part of this land upon which the animal was killed was not necessary for the use of defendant as part of its station grounds.” In the present case the plaintiff’s animal passed from the public highway upon this tract or strip of land used for station purposes, and wandered along the strip until it passed upon the company’s right-of-way and upon the railroad track, where it was killed; and neither the railroad track, nor the right-of-way, nor the strip of land, was inclosed with a fence. A fence, however, extended along one end and a part of the two sides of this strip of land, but this made the wrong of the railroad company in the present case greater — if it committed any wrong — for by reason thereof the animal could not escape from the passing train. Assuming, for the purposes of this case, that land necessarily used for station grounds need not be fenced, then the question arises, is it necessary for a railroad company to inclose a tract not necessary for the use of the railroad company as a part of its station grounds, but in fact so used ? Under the circumstances of this case, we think we must answer this question in the affirmative. To say that railroad companies are not required to fence their roads in such cases, would be to create an exception to an express statutory requirement, and to create such exception without any good reason therefor. This does not come within the province of. the courts. Courts may — 532 — say that where some other statute, or some paramount duty or obligation absolves railroad companies from fencing their roads, they need not do so; but where the statute expressly requires railroad companies to fence their roads, in order to exempt the ■companies from liability, and no other statute or paramount ■obligation or duty or any good reason exists to relieve them from so fencing, the courts cannot say that they need not fence; but if for any reason they are relieved from fencing their roads ■at some particular place or places, then they must construct fences or other barriers as near thereto as is reasonably practicable. (Cleveland &c. Rld. Co. v. Newbrander, 40 Ohio St. 15; same case, 11 Am. & Eng. Rld. Cases, 480; Morris v. St. L. K. C. & N. Rld. Co., 58 Mo. 78; Bradley v. B. N. Y. & E. Rld. Co., 34 N. Y. 427; Tracy v. T. & B. Rld. Co., 38 id. 433; Comstock v. D. M. V. Rld. Co., 32 Iowa, 376.) And if for any reason a railroad company is relieved from fencing its road at any particular place, it devolves upon the railroad company to show that it is so relieved. The burden of proof in all such cases rests upon the railroad company. (U. P. Rly. Co. v. Dyche, 28 Kas. 200; same case, 11 Am. & Eng. Rld. Cases, 427; same case, 1 Pac. Rep. 243; I. P. & C. Rld. Co. v. Lindley, 75 Ind. 426;. same case, 11 Am. & Eng. Rld. Cases, 495; R. R. I. & St. L. Rld. Co. v. Lynch, 67 Ill. 149; Flint & P. M. Rly. Co. v. Lull, 28 Mich. 510.) In some states there are express exceptions by statute, as in Illinois, for instance, railroad companies are not required to fence their roads at the crossings of public roads and highways, or within the limits of cities and incorporated towns and villages; and in some states increased damages by the way of penalties are imposed for failures to fence, as in Iowa, the party recovering because of a want of a sufficient fence is entitled to recover double damages. Of course decisions rendered upon such statutes have no application in this state, where no exceptions are found in the statutes, and no damages or penalties are imposed except the value of the animal killed, or damages for the animals wounded, and an attorney-fee. The plaintiff in this case permitted his animal to run at — 533 — large, but by so doing we do not think that he was guilty of such contributory negligence as will prevent his recovery. Numerous cases might be cited, but- we' think it is necessary to cite only a few of them, as follows: Flint & P. M. Rly. Co. v. Lull, 28 Mich. 511; Ewing v. C. & A. Rld. Co., 72 Ill. 25; Bellefontaine Rly. Co. v. Reed, 33 Ind. 447; Cressly v. N. Rld. Corp., [Sup. Ct. of N. H.,] 15 Am. & Eng. Rld. Cases, 540, and note, p. 544. The judgment of the court below will be affirmed. All the Justices concurring.