Kavanaugh v. Atchison, Topeka & Santa Fe Railroad

Biggs, J. — [82] statute. [81] The statute provides that “every railroad corporation formed or to be formed in this state, and every corporation to be formed under this article, or any railroad corporation running or operating any railroad in this state, shall erect and maintain lawful fences on the sides of the road where the same passes through, along or adjoining inclosed or cultivated [82] fields or uninclosed lands, with openings and gates therein, to be hung and hav-e latches or hooks, so that they may be easily opened and shut, at all necessary farm crossings of the road, for the use of the proprietors or owners of the land adjoining such railroad * *' * and until openings, gates, etc. * * * as aforesaid shall be made and maintained, such corporation shall be liable in double the amount of all damages which shall be done by its agents, engines or ears to horses, cattle, mules or other animals on said road.” (Sec. 2611, R. S. 1889.) In 1887 the defendant located and built its roadbed through the plaintiff's farm. The portion of the land south of the railroad is used for the pasturage of live stock. The dwelling house and barn are situated on the north side of the track. At a point opposite the house and barn the defendant constructed, and since 1887 has maintained, a farm crossing leading from the barn lot into the pasture. It put up at this crossing “sliding gates,” that is gates hung at *one end on wooden cleats nailed to double posts and fastened to posts at the other end by means of hooks and staples. About six o’clock on the afternoon of September 14, 1897, Dennis Kavanaugh, one of the plaintiffs, drove their milch cows over this crossing from the pasture into the barn lot. evidence. He testified that he securely fastened both gates. About seven o’clock the next morning six of the cows escaped through the north gate (which at that time was open) onto the railroad track, where they were struck by an engine. Four of the animals were killed and two were crippled. The plaintiffs brought the present suit for double damages, alleging in their petition a violation of the foregoing section of the statute, in that defendant had failed to construct and maintain statutory gates at the crossing, and that by [83] reason thereof the plaintiff’s cows escaped upon the railroad track. There is no satisfactory evidence as to how the gate was opened. One of the plaintiffs gave it as his opinion that it could not have been opened-by the action of the wind or by stock rubbing against it, and that some one must have passed through during the night or early morning and left it open. There was evidence that the crossing was used by persons living in the neighborhood, and also that the section men at work on defendant’s road and tramps passing along the railroad were in the habit of going through the gates. There was also evidence that the gates were very heavy and were hard to open and shut. Upon this state of the proof the defendant asked that the plaintiffs be nonsuited. This the court refused to do. At the instance of the plaintiffs the court gave the following instruction: instructions, “The court instructs the jury that it is the duty of the defendant to erect and maintain lawful fences on the sides of its road where the same passes through, along or adjoining inclosed or cultivated fields or uninclosed land with openings and gates therein to be hung and to have latches or hooks so that they may be easily opened and shut at all necessary farm crossings of the road, for the use of the proprietors or owners of the land adjoining such road, and until such fences and gates are erected and maintained the defendant is liable in double the amount of damages done to horses, mules, cattle and other animals, by its agents, engines or cars, escaping and entering upon said road from adjoining inclosures of landowners. And if the jury believe from a fair preponderance of the evidence that the defendant’s railroad runs through and along plaintiff’s inclosed farm lands in Greensburg town [84] ship, Knox County, Missouri, and that there was a necessary farm crossing of defendant’s railroad on said farm of plaintiffs, and on or about the 15th day of September, eighteen hundred and ninety-seven, six of plaintiff’s cows escaped and entered from their inclosures upon defendant’s road at said farm crossing on account and by reason of defendant’s failure to erect and maintain a gate at said farm crossing hung and with latch or hook so that it could be easily opened and shut, and four of plaintiffs’ said cows were by reason thereof then and there struck and killed, and two of them injured by defendant’s engine and cars on its said road, they will find for the plaintiffs the actual amount of damages they have sustained by reason of such killing and wounding of their cows as aforesaid not to exceed the sum of two hundred and twenty dollars.” The jury found the issues for the plaintiffs and assessed the damages at the sum of $220. The court entered judgment for double the amount. The defendant has appealed. If the plaintiffs were- entitled to have the case go to the jury, unquestionably it was fairly submitted by the foregoing instruction. Concerning the sufficiency of the appliances for fastening the gate when closed there is no complaint.- It is conceded that the gate was securely fastened late in the afternoon of the fourteenth and one of the plaintiffs gave it as his opinion that the gate could not have been opened by the action of the wind or by stock rubbing against it. The facts in evidence clearly show that some one passed through the gate during the. night and left it open. As the cattle escaped onto the track before it was possible for the servants of the defendant to be advised of the danger, the liability of the defendant (if any) must rest on the fact that the gate was not (a “statutory” [85] one) constructed in compliance with the statute and that by reason of this it was left open, thereby causing the injury. The statute says that gates at farm crossings must be hung so that they may be easily opened and shut. It is not an unfair construction to say that the legislature contemplated that they should be hung on hinges, as that is the usual way. But we do not deem this requirement essential or material. The important requirement is that such a gate should be hung in a way that it may be easily closed, the purpose being to minimize the danger arising from the negligence or failure of persons passing through the gate to close it. Here the evidence tended to show that the gate was constructed of plank sixteen feet long; that it was very heavy; that it had been allowed to get out of repair so that it sagged, and that for these reasons it was difficult to open and close it. Some of the witnesses said that only a man could open and close it. Others thought that a strong boy could do it. This entitled the plaintiff to the judgment of the jury as to whether the gate was constructed according to the statutory requirements. It is insisted that the instruction is erroneous in requiring the jury to determine whether the crossing was a necessary crossing, without stating to the jury the conditions which would make a crossing at that particular place necessary. Fnecéscsuys¿fs: It is undoubtedly true that the necessity for a farm crossing is a mixed question of law and fact, and that ordinarily it is error to submit such a question, without giving the jury some guide in determining it, but in the ease at bar the defendant neither by its evidence nor instructions put in issue the necessity for the crossing. In 1887 it constructed the crossing and it has maintained it ever since, and if the question had been properly submitted there is no reasonable ground to suppose that the [86] finding would have been different. Indeed the circuit court would have been justified in assuming in its instructions that the crossing was necessary. Freet v. R. R., 63 Mo. App. 549. Judge Bond concurs; Judge Bland dissents and is of the opinion that the decision is opposed to the decisions of the supreme court in the following cases: Harrington v. R. R., 71 Mo. 384; Fitterling v. R. R., 79 Mo. 504; Binicker v. R. R., 83 Mo. 660. The judgment will therefore be affirmed and the cause certified to the supreme court for final determination.