Hobbs v. St. Louis, M. & S. Railroad

NORTONI, J. (after stating the facts). — It is the adjudicated law under section 1106, R. S. 1899, under which this suit was brought, that to recover thereunder it must be shown; first, that the animal went upon the right of way at a point where the fence is defective and through such defective fence; second, that she must be frightened by the locomotive or train of cars; third, that the injury or death must result from running against the fence in consequence 'of such fright. The statute'itself says as much. Courts have repeatedly so held. Briggs v. Ry., 110 Mo. 168; Perkins v. Ry., 103 Mo. 52, 15 S. W. 320; Shaw v. Ry., 110 Mo. App. 561. Appellant argues that there is no evidence 'showing any one of these elements essential to recovery. We cannot agree with this contention. The essential elements of the case can be made out as well by circumstances as by positive proof. If the circumstances are so connected and bear such relation to the main fact in controversy as to reasonably satisfy a fair and impartial mind that the injury resulted by reason of the [131] . mare going upon the right of way through a defective fence and that she was there frightened by the locomot-ive or train, and in consequence of such fright, ran into the fence, which resulted in her death, then a prima facie case is made as well on circumstances as by positive proof. [Gee v. Ry., 80 Mo. 283; Blewett v. Ry., 72 Mo. 583; Carlos v. Ry., 106 Mo. App. 574, 80 S. W. 965; Combs v. Ry., 58 Mo. App. 168; Hess v. Ry., 36 Mo. App. 163; McBride v. Railroad, 20 Mo. App. 216.] The evidence shows conclusively that there was no fence at the station and as much as two hundred and fifty feet of the road was unfenced near the point where the animal was found dead as well as a space left for gates therein in which there were no gates. The evidence is positive that the mare and other horses were inside of the right of way and the mare standing upon the track looking south only a few days before she was discovered dead and buried. Plaintiff relates that in his search for the mare, he went upon the right of way at one of its defective places in the fence and found tracks from where he first came upon the right of way up to where the mare was buried and that he supposed they were his horse’s tracks. The witness who saw the mare standing upon the track, stated that there was then coming nearby, a gravel train, going northward toward the mare; that he heard it sound the stock signal and heard the signals continue for about a quarter of a mile more and that it was about a quarter of a mile from that point to where the mare was found a few days later dead, inside the right of way, entangled in the wire fence. Appellant may argue that it must be shown positively that the mare was frightened by its signals. Plaintiff could not well go into the senses of the mare and discover what her feelings were, whether of fear or pleasure, at the sound of the stock signals of the approaching train. Proof on this proposition is happily dispensed with by the law. Wharton in his Law on Evi [132] deuce, vol. 2, sec. 1295, says: “We may also assume, as a presumption of fact, that animals, As a general rule, will act in conformity with their nature. Thus, it is probable that untended cattle will stray; that horses will take fright at extraordinary noises and sights.” The learned author also says in the same section that we may assume as a presumption of fact that shying horses may,continue to shy; that certain kinds of dogs will worry sheep and that a cow will go through an opening in a fence instead of leaping the fence on either side of the opening. So, then, we find the law presumes that the plaintiff’s horse went upon the railroad through the opening of the fence as it was seen inside the right of way and upon the track near the opening. The presumption is that it went through the defective fence and not over the lawful fence on either side of the defect. But aside from this presumption, plaintiff’s testimony was to the effect that he followed tracks from the point where he went on the right of way to where he found the mare dead. The engine having sounded the stock alarm, the presumption is indulged that this mare took fright thereat as horses usually do and the continued sounding of the whistle for a quarter of a mile north is a strong circumstance tending to prove that the mare was frightened and fleeing from the train, as she was afterwards found dead, near the place where the stock alarm ceased to sound. Then, too, the evidence discloses that the other three animals with her were bruised and injured and seemed to have had the same experience or nearly so. The Supreme Court of New Jersey has said: “It is a matter of common knowledge that horses, otherwise well broken and kind,.show signs of terror at the sight of a moving vehicle drawn by an invisible motor.” [Meyer v. Krauter, 24 L. R. A. 575.] It is just as appropriate to say that it is a matter of common knowledge that horses usually take fright at locomotives when sounding stock alarms. The railroads recognize this to [133] be true else why sound stock alarms? It is one of the common experiences of life of which we must all take notice and govern ourselves accordingly. “Courts will take notice of whatever ought to be generally known within the limits of their jurisdicton.” [Greenleaf on Evdence, (14 Ed.), sec. 6; Grimes v. Eddy, 126 Mo. 180, 28 S. W. 756.] “If the fact alleged to exist and upon which the rights of parties depend, is within common experience and knowledge, it is one of which courts will take judicial notice.” [Minnesota v. Barber, 136 U. S. 313; Grimes v. Eddy, 126 Mo. 180.] Appellant’s contention that the fact the mare was found dead with her head entangled in the wire fence and her throat cut, is not sufficient to satisfy the rule of the statute that she ran against the fence, when considered together with other facts and circumstances in proof, is hardly tenable. There could be no other reasonable theory by which she came to her death, looking to the record before us, than that she became frightened by the train and ran into the fence. It is very improbable indeed that the mare would have gone to the fence voluntarily and endeavored to go through it by putting her head through the wires, or reaching through the wires in eating grass when the evidence shows there was grass inside and outside the right of way. And we would necessarily presume again that the mare would go out of the right of way the way she came in rather than presume that she attempted to go through the fence and we cannot well assume that she deliberately committed suicide. We must agree that horses have sense and some sagacity. As was held by the Kansas City Court of Appeals in the case of Carlos v. Ry., 106 Mo. App. 577, 80 S. W. 965. “It is not likely that in mere play the horse would have run into the trestle for it is an animal of too great sagacity to be guilty of an act of that nature. . . . There was no evidence of any alarming cause other than the noise made by the passing locomotive. [134] We are to draw our inferences from the facts proved and not from such as might have been.” So it is in this case. We must draw our inference from the facts proved and before us in this record and not draw them from nothingness, which would amount, when drawn, to nothing more than conjecture or suspicion. The facts proved show the mare on the railroad track, the train approaching, the sounding of the stock alarm, tracks of the horses from the point of entry on the right of way, and that plaintiff followed the tracks where they had been running backward and forward across the road on the roadbed until he found the mare where buried. The mare, when discovered, was inside and not outside of the right of way, entangled in the wire. In our opinion there was not only substantial but there was abundant evidence to send this case to the jury, and the court did not err in refusing the peremptory instruction asked. The judgment is affirmed. All concur.