Harrington v. Chicago, Rock Island & Pacific Railroad

Henry, J. In the case of Berry v. St. Louis, Salem $• Little Rock R. R. Co., 65 Mo. 172, it was held by this court that: “ The duty of fencing the sides of their roads through inclosed and cultivated fields, is imposed upon railroad companies for the benefit of the owner or proprietor of such fields and inclosures. * * The cattle of a stranger which are on the premises of the adjoining proprietor, without right, are not within the protection of the statute.” If the fence around the field of the adjoining proprietor was a lawful fence, there was no obligation on the company, except as to such proprietor, to fence its road where it ran through the field. This was distinctly held in the case of Berry v. St. L., S. & L. R. R. R. Co., supra. The evidence in this case shows that the mules of plaintiff were breachy, and, in company with the mare .killed, broke over the’fence inclosing Elliott Miller’s Held. The plaintiff offered no evidence to prove that Miller’s was [386] not a lawful fence, and it was equally as incumbent upon the plaintiff" to show that fact, as it would have been if the mules had gone upon the track over a fence erected by the company, along the line of its road, under the statute. The evidence shows that the company had a lawful fence along the side of its road, and a gate so constructed as to be a section or panel of the fence when closed. It was not hung on hinges, or fastened with a latch or hook, but was a sliding gate, and to open it, one had to lift and slide it back on slats nailed across a double post. It was not so convenient for Miller, but was equally as well calculated to keep stock off’ of the track as one hung with hinges and fastened with a latch. That it was not as convenient for Miller as if hung on hinges, and fastened with a latch, as required by the statute, was a matter of which no one but he could complain, and the third instruction for plaintiff was erroneous. That Miller, without the consent of the company, left the gate open, and in consequence thereof the mare got upon the track, does not render the defendant liable. If Miller’s fence was nota lawful one, yet if the railroad fence was, and the gate when closed, was substantially a section or panel of the fence, and formed as good a barrier against stock as the fence itself, the defendant is not liable. And, on the other hand, adhering to the doctrine of Berry v. St. Louis, S. & L. R. R. R. Co., if Miller’s field fence was a lawful fence, and plaintiff’s mules broke over it, in company with the mare killed, and she went upon the track, the company is not liable, although it may have had no fence at all along the side of the road at that point. The judgment is reversed and the cause remanded. All concur.