Hunter v. Chicago, St. Paul, Minneapolis & Omaha Railway Co.

"WiNSLow, J. Sec. 1810, S. & B. Ann. Stats., requires every railroad company to construct and maintain cattle guards at all highway crossings, and this action was based upon an alleged failure to fulfill that duty. The notice served upon the company previous to the commencement of the action specifies that the absence of a cattle guard at the public highway crossing was the cause of the death of the animal, and the complaint reiterates this statement as the sole ground of liability. No amendment charging any different ground of negligence was made upon the trial nor offered to be made, and thus the case comes to this court. [616] IJpon this proposition it is quite certain that the plaintiffs failed to make a case, because they failed to prove the existence of a highway. It is true that they proved that an order was made by the city and town authorities purporting to lay out a highway at the place in question in 1890, but the proceedings offered in evidence showed affirmatively that no notice of their pendency was ever given to the railway company, and that no damages were ever awarded or paid, and there was no release of damages. Under these circumstances, it cannot be claimed that the supposed highway was ever legally laid out across the defendant’s right of way. Nor can it be claimed that the defects were cured so far as that part of the street across the defendant’s right of way is concerned by the provisions of sec. 1295, E. S. 1878, which cures defects in the proceedings after a highway has been opened and worked for a term of three years, so far as it has been so opened and worked; because the proof shows affirmatively that within two years the defendant fenced across the supposed highway, and put in gates, which act was clearly a denial of the existence of a highway and stopped the running of the statute. So it cannot be claimed that a highway existed either by force of the condemnation proceedings, or by voluntary dedication, or by the limitation statute just referred to, and it is not perceived how a highway could be created across the defendant’s already existing right of way in any other way. But it is said that, if there was no highway, then the right of way should have been fenced at the point in question, and that a recovery may be had by the plaintiffs by reason of failure to fence, under the provisions of sec. 1810, before cited. With regard to this claim, it is sufficient to say that it certainly cannot be made for the first time in this court. No such ground of liability was claimed, and no issue thereon joined or tried, in the trial court. The whole trial was upon the issue of highway or no highway, and the action cannot, [617] after reaching this court, be changed into an. action to trj the question of defective fencing. Other questions were argued, but, as we regard the question which we have discussed as decisive, it is not necessary to notice them. By the Oov/rt.— Judgment affirmed.