Turner v. Chicago, Rock Island & Pacific Railway Co.

Brown, C. J. In an action for the value of certain cows killed by one of defendant’s trains plaintiff had a verdict for $250; defendant moved for judgment notwithstanding the verdict, or a new trial; the motion was denied and defendant appealed from the judgment rendered on the verdict. Plaintiff owns and resides upon a farm adjoining the right of way of defendant; a pasture in'which his cattle were confined is inclosed on one side by the right-of-way fence, constructed by defendant in compliance with statutory requirements. The right-of-way fence was defective, and by reason thereof some of plaintiff’s cows passed out of the pasture and onto the right of way.’ They followed the right of way to an intersecting highway, passed over the cattle guards into the highway, and thence to the yard of an adjoining farm where they proceeded to dispose of some corn, which lay exposed in the yard, when the occupant of the house [385] “set the dog” on them, and they made a hasty retreat through a farm gate back upon the right of way, where soon thereafter they were struck and killed by a passing train. The farm gate, through which they entered upon the right of way, was placed in the right-of-way fence at this point for the convenience of the owner of that farm, and had been left open by some member of his household. The time elapsing after the escape of the cows until they reached the adjoining farm, soon after which they again went upon the right of way and were killed, does not-clearly appear, though we judge from the facts disclosed that the movements of the cows were practically continuous from their escape from the pasture until they were struck and killed by the train. The assignments of error relied upon for reversal present two questions: (1) Whether there was reversible error in the instructions of the court in respect to the duty of defendant to keep and maintain its right-of-way fence in good condition of repair; and (2)- whether the defect in the fence was the proximate cause of the injury to and death of the cows. The point that the court erred in permitting an amendment of the complaint is not sustained. There was no abuse of discretion. 1. Defendant’s right of way had been properly fenced, as required by law, and no question was made respecting the sufficiency of the fence as originally constructed; the precise claim of negligence being a failure to keep and maintain the same in good condition. The court charged the jury relative to the statutory duty of defendant to construct and maintain the fence, but did not instruct in reference to the degree of care required to keep and maintain the fence in good repair. Counsel for defendant, in the motion for a new trial, - excepted to the instructions upon this feature of the case, contending that the jury were thereby informed that the duty of repair and maintenance was absolute, and not one of reasonable care, as fixed by G. S. 1913, § 4263. No exception was taken at the trial, nor was the attention of the court otherwise called to the defect in the instructions. The case in this' respect is practically identical with Coe v. Northern Pac. Ry. Co. 101 Minn. 12, 111 N. W. 651, 11 L.R.A.(N.S.) 228, 11 Ann. Cas. 429. The failure of the court in that, as in the case at bar, to refer to the degree of care imposed upon the defendant manifestly was an oversight, an unintentional omission, to which attention should have been called at the trial. [386] 2. The contention that the defect in the right-of-way fence at the point where the cows entered upon the right of way was not the proximate cause of their subsequent injury by the train is not sustained. The defective right-of-way fence was the occasion of the escape of the cows from the pasture. From that point to the time they were frightened from the yard of the adjoining farmer and passed through the open gate, again upon the right of way, where they met death, was one continuous uninterrupted course of events, and whether such defect in the fence was the proximate cause of their subsequent death was at least a question of fact. Strobeck v. Bren, 93 Minn. 428, 101 N W. 795; Jeffries v. Chicago & A. Ry. Co. (Mo. App.) 182 S. W. 1082. The evidence sustains the verdict in this respect. The act of the wife of the adjoining farmer in setting the dog on the cows, thus frightening them away and causing them to go through the open right-of-way gate, was not an independent intervening cause which may be said as a matter of law to interrupt the causal connection between the defective fence and the death of the animals. The question was properly submitted to the jury. Nelson v. Chicago, M. & St. P. Ry. Co. 30 Minn. 74, 14 N. W. 360; Frisch v. Chicago G. W. Ry. Co. 95 Minn. 398, 104 N. W. 228, are not in point. This covers the case. The evidence sustains the verdict, and no reversible errors are disclosed by the record. Judgment affirmed.