Duncan v. St. Louis, Iron Mountain & Southern Railway Co.

Black, J. 1. The plaintiff’s mare got upon the-defendant’s road through a gate in defendant’s fence, along the road where it passes through unenclosed lands, and was injured by the cars. The complaint states that the defendant failed to maintain lawful fences, cattle-guards, gates, and openings, etc. ; and the defendant moved to require plaintiff to elect upon which cause of action he would proceed. There is but one cause of action stated, or attempted to be stated, in the complaint. The plaintiff may allege a failure to maintain fences and cattle guards, and proof of either, with proof of the other necessary averments, will entitle him to recovery. 2. Defendant’s first refused instruction is, in substance, that if the gate was closed and fastened with a rail the night before the mare got on the road, and during the night was opened by some person or means, then, before the plaintiff can recover, the evidence must show that sufficient time elapsed, after the gate was opened and before the mare got on the track, in which defendant, by the use of reasonable care, could have discovered that the gate was open. One witness says, the gate was closed in the .evening when he went to town, but was open when he came back, and he then saw the animal in her injured condition; this witness and all the others agree that the gate never 'had any latch, hook, or other fastening on it, until after the animal was injured; that it was open nearly all the time ; sometimes it was fastened with a rail or stick, but neither would prevent it from being blown open by the wind; that the section men worked at or near the place time and again. The law provides that these gates shall have latches or hooks. A rail or stick laid over the top of the gate, as seems to have been done in this case, occasionally, is no compliance with the law at all. The gate, then, never had any [71] fastening such as the law requires, and the doctrine that a reasonable time must elapse after the gate or fence gets out of repair, in which the defendant may discover its condition, has no application to the case. Again, there is but one conclusion to be drawn from the evidence, and that is, that the gate got open for want of a suitable fastening. There was no evidence upon which to base the instruction. 3. The statute expressly requires the defendant to fence along unenclosed lands. Although the mare strayed away from plaintiff’s premises and got upon these commons, and thence through the gate on the road, still these facts constitute no defence whatever, and the second instruction was properly refused. Nor does the fact that the gate was at a private crossing help the defendant. Judgment affirmed. All concur.