Missouri Pacific Railway Co. v. Eckel

Opinion by Green, C.: Charles B. Eckel brought an action against the Missouri Pacific Railway Company to recover damages and attorney’s fees for a mare alleged to have been killed by the negligence of the railroad company in the operation of its railroad, in Butler county. It seems that the right-of-way was not fenced on the north side of the railroad. South of the railroad, and near the south line of the right-of-way, there was a wire fence constructed and owned by the owner of the adjoining laud, running east and west parallel with the track. North of the railroad, and partially on the right-of-way, there was a traveled road, which had been used as such for several years, but was not a regularly laid out highway. The mare in question had been kept in a pasture about a mile and a half from where the accident occurred, but escaped from the inclosure on account of a storm which blew down the fence. She passed over an adjoining field, on the railway track, going in a southwesterly direction. It appears from the evidence that she became frightened by an approaching train from the east, and she either ran or was thrown off of the track into the barb-wire fence on the south line of the right-of-way, where she sustained such injuries that she died in a short time. At the December term, 1889, the plaintiff obtained a judgment against the railroad company for $96 damages and $45 attorneys’ fees. It is contended by the railroad company that the facts do [798] not authorize a recovery under ¶ 1252 of the General Statutes of 1889. It is urged that, because the mare was not struck by the engine or cars of the railway company, and did not come in contact with any property owned, constructed or operated by the company, there is no liability. The proposition, as stated by the plaintiff in error, is this: If a horse, while running at large, becomes frightened at a passing train, and in his flight from the train crosses an unfenced railroad and runs against a wire fence located on the land of another, and which fence was constructed, owned and controlled by him, is the railway company liable, under the statute, for the injuries sustained? It is conceded that the question might be answered in the affirmative if it can be said that the object of the fence required by the statute is to exclude animals from the lands of other persons, and thus possibly prevent an injury. We assume it to be one of the objects of the law to require railroad companies operating lines of railroads in this state to fence the same so as to prevent animals from being on such roads. This court has said: “Animals straying upon a railroad track is one of the recognized sources of danger to travel; and with the increased speed of railroad trains, experience amply demonstrates the necessity of inclosing railroad tracks through inclosed fields, as well as elsewhere, with good and sufficient fences; and to insure safety and protection to the traveling public, all these necessary precautions are demanded. It is not the land-owner who is benefited. The railroad company, in obeying the law, protects its passengers and its property interests as well. The protection is three-fold. ... In the exercise of the ordinary police powers of the state, it has been held reasonable to require railroads to fence their tracks, not alone for the protection of the live stock of the abutting owners. Indeed, the chief object of the statute is the protection to the traveling public against accidents occurring through collision of trains with stock.” (Mo. Pac. Rly. Co. v. Harrelson, 44 Kas. 253.) As stated by Judge Brewer, in the case of Railroad Co. v. Jones, 20 Kas. 527, the language of the statute is very broad, and extends to those cases where animals are injured [799] in any other manner whatever in the operation of such railway. In a very recent case it was held by this court, that where an animal was pasturing on the right-of-way of a railroad at a place where it ought to have been fenced but was not, and was frightened by the sounding of a whistle upon an engine drawing a train of cars, and ran along by the sid.e of the track on the right-of-way into a wire fence running at right angles with the railroad, and was injured, the company was liable under the statute. (Mo. Pac. Rly. Co. v. Gill, ante, p. 441; same case, 30 Pac. Rep. 414.) In this case the mare got on the right-of-way and was frightened by the cars, and was either struck or ran off of the track into the fence, located near but not on the right-of-way, and was killed. "Was the animal injured by reason of the failure of the railway company to fence its road? It seems from the evidence that the mare was frightened, while on the right-of-way, by the passing train, and, on account of such fright, ran into the fence and was injured. Was not the operation of the train without a fence inclosing the right-of-way the proximate cause of such injury? The company left the road unfenced. It knew that animals were liable to stray upon the right-of-way, and thus be in danger from the operation of its trains. We are of the opinion that the railway company was liable under the statute. It is next urged that the court erred in refusing to submit certain interrogatories to the jury in regard to a highway on the north side of the railroad track, and also refused to instruct the jury that if there was a road traveled by the public as a highway along the north side of the railroad, and a portion of such road was on its right-of-way, the company would be excused from fencing its road on that side, and would not be liable for damages to stock occasioned by the failure to construct a fence. It was established by the evidence that this traveled road was from 20 to 60 feet from the railroad track; it was not a regularly laid out road. We do not think, under the facts of this case, the company was excused [800] from fencing its road. There was space sufficient between the traveled way and the track to have built a fence. The fact that it was a traveled road and not a pasture makes the necessity for a fence-all the greater. The final objection urged is, that the instructions of the court were erroneous and misleading. After quoting the statute, the court said to the jury: “The foregoing does not apply to any railway or corporation, or the assignee or lessee thereof, whose road is inclosed with a good and lawful fence, which prevents such animals from being on such road.” The criticism is made that the court gave the jury to understand that the road must be inclosed with such a fence as would actually prevent the animals from going upon the track. The language of the statute is: “ This act shall not apply to any railroad 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.” We do not think the words “which prevents,” as used in the court’s charge, instead of the language of the statute, “to prevent,” misled the jury. An affirmance of the judgment of the district court is recommended. By the Court: It is so ordered. All the Justices concurring.