Missouri Pacific Railway Co. v. Roads

The opinion of the court was delivered by Johnston, J.: J. N. Roads brought suit before a justice of the peace of Neosho county, to recover the value of eight hogs belonging to him, which were run against and killed by the ■engine and cars of the Missouri Pacific Railway Company. The action was brought under the railroad stock law of 1874, and the plaintiff alleged in his bill of particular’s that the hogs were not killed near any public road or crossing, but without any [641] fault on bis part they went upon the railroad track and were killed at a place where the railroad ought to have been but Avas not inclosed by any fence. It was also alleged that the hogs were killed by reason of the negligence of the railway company, its agents and servants. There was an averment that a demand was duly made by the plaintiff upon the railway company for the value of the hogs killed, but that payment was refused. In the justice’s court judgment was given in favor of the plaintiff, and the defendant prosecuted an appeal to the district court, where the case was tried without a jury, and a general finding made that the allegations of the plaintiff in his bill of particulars were true; that he was entitled to recover the sum of $75, the value of the hogs killed, and the further sum of $35, attorney’s fees; and judgment was rendered accordingly. The railway company contends that this judgment is erroneous and cannot stand, because it was obtained under the railroad stock law, which it is claimed has no application to hogs, and imposes no obligation upon railroad companies to fence against them. This question, as well as most of the points raised in the case, have been decided adversely to the contention of the railway company in the recent case of Missouri Pacific, Railway Co. v. Bradshaw, ante, p. 533. There it was ruled that “the railroad company is required to fence against all animals against which a good and lawful fence would be any protection;” and that “where a good and lawful fence will protect a railroad track against, any "particular hogs, the railroad company is bound to fence as against such hogs; and if the defendant railroad company in such a case claims that it was not bound to fence its road as against the particular animal in question, it devolves upon the railroad company to show it.” In this case, no testimony was offered by the defendant; and the plaintiff’s testimony does not disclose how large the hogs were, but presumptively, a lawful fence would have prevented them from going upon the railroad track. (Mo. Pac. Rly. Co. v. Bradshaw, supra.) About the only distinction between the Bradshaw case and [642] the present one is, that in the former case the railroad ran through the premises of Bradshaw, and the animals in that case passed directly from the land of the owner upon the railroad track, where they were killed. In this case it does not appear that plaintiff’s land extended to the track, although the distance between the pen where the hogs were inclosed and the point where they went upon the railroad track and were killed was only from a quarter to half a mile. It is claimed that the plaintiff was negligent, in that the hogs were trespassers upon the adjoining land, and that the company cannot be held liable under the statute for killing animals that were unlawfully upon the adjoining land, and came therefrom upon its unfenced track, unless after the animals were discovered upon the track the company and its employés failed to exercise ordinary care to prevent injuring them. Upon this question the general rule appears to be that where a statute requiring railroad companies to fence their tracks is a general police regulation, intended to protect domestic animals generally, and also for the safety of persons and property passing over the road, and is not designed merely for the benefit of the adjoining land-owner, that the railroad company is held to be under a general obligation to the public, and is liable for animals injured and killed on its unfenced track, even though they were unlawfully upon the land from which they passed upon the railroad track. (Indianapolis &c. Rld. Co. v. Townsend, 10 Ind. 38; Railroad Co. v. Maiden, 12 id. 10; Railroad Co. v. McKinney, 24 id. 283;. Railroad Co. v. Guard, 24 id. 223; McCall v. Chamberlain, 13 Wis. 637; Curry v. Railroad Co., 43 id. 665; Fawcett v. Railway Co., 16 Q. B. 609; Pierce on Railroads, 414.) This is the character and purpose of our statute, and it has been so construed by this court. It was said that "the fencing of the railroad track is a duty not merely for the protection of cattle, but for the protection of the lives and safety of persons on railroad trains, whether employés or passengers. The enforcement of this duty is the exercise of the police power of the state.” (Sherman, Adm’r, v. Anderson, 27 Kas. 335.) [643] Under this construction of the statute, the mere fact that the animals were trespassing upon the land from which they went upon the unfenced railroad track, will not, where the plaintiff is without fault, defeat a recovery. Of course no recovery could be had for an injury arising from the failure of the railroad company to fence its track, where the owner purposely placed his animals in a position of danger. But there is nothing in the record of this case that would justify such a charge against the plaintiff. Indeed, the escape of the hogs from the pen in which they were inclosed appears to have been a mere accident, and no negligence can be properly attributed to the plaintiff therefor. The testimony shows that the hogs had been carefully inclosed in a strong pen made of posts and boards of proper height, and that on the morning of the accident a neighbor’s bull came along, and in attempting to jump into the pen broke it down in such a way that the hogs were allowed to pass out of it. They had never before escaped from this inclosure, and on this occasion the plaintiff discovered that they had gone within a few minutes after their escape, and immediately sent parties in pursuit of them, but befoi’e overtaking them they went upon the unfenced railroad track and were killed. It was no fault of the plaintiff that the hogs escaped from the inclosure, neither did they stray upon the railroad track by reason of any negligence of the plaintiff. "We must therefore hold that he is entitled to indemnity for their loss. (K. C. Ft. S. & G. Rld. Co. v. McHenry, 24 Kas. 503.) The judgment of the district court will be affirmed. All the Justices concurring.