Roberts v. Chicago & Alton Railway Co.

NORTONI, J. (after stating the facts). — The material portions of the statute are as follows: “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 fields or uninclosed lands, with openings and gates therein, to be hung and have latches or hooks, so that — 380 — 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 also to construct and maintain cattle guards, where fences are required, sufficient to prevent horses, cattle, mules and all other animals from getting on the railroad,” etc. [Sec. 1105, R. S. 1899.] It also provides a penalty of double damages for losses occasioned by reason of the omission of the duties thereby imposed. The principal argument advanced for a reversal of the judgment is that it devolved upon the plaintiff to show and the jury to find: first, that plaintiff either owned, or that his mare was lawfully upon, the lands from which she came onto the railroad tracks, as has been frequently decided. [Herrington v. Railway, 71 Mo. 384.] Second, that the gate in question was a necessary farm crossing on the railroad: and third, that the gate was not furnished with such fastenings as amounted to a sufficient hook or latch within the meaning of the statute; that these facts must be affirmatively proved by the plaintiff and found by the jury as wTell as the facts that the plaintiff owned the mare and that the want or insufficiency of the hook or latch on the gate was the proximate cause of her death; and it is insisted by appellant that even though the evidence may be sufficient to sustain the first proposition, that the mare was lawfully on the land, and the second proposition, that the crossing at which defendant maintained the gate was a necessary farm crossing, that the court erred in submitting these two propositions in the plaintiff’s first instruction, as it did, without any other or further guide to the jury as to what would be necessary to render the mare lawfully on the premises, etc., and as to. what were the requirements to render the crossing a necessary farm crossing. It is true that these are mixed questions of law and fact, which must be established by the evidence — 381 — and found by the jury under proper instructions when they are in issue in the case. There certainly could be no question where the plaintiff assumes the burden to establish the fact that his mare was lawfully at pasture on the lands, and an issue thereon is made up for the jury, and the fact, instead of being conceded, becomes a controverted fact, that in such case the court would be required to give the jury, by instructions, such enlightenment on the question of what would be a lawful occupancy under the circumstances, as would be proper to guide them in their deliberations thereon. And this is equally true in a case where the plaintiff assumes to establish that the farm crossing at which the gate in question was in use, Avas a necessary farm crossing, the matter being controverted on the trial. Inasmuch as it is a mixed question of laAv and fact, it would be error for the court to submit the same to the jury without proper instructions as to Avhat would be a necessary farm crossing within the contemplation of the statute. And this is certainly as far as the adjudicated cases cited and relied upon by the appellant go on the question. [Miller v. Railway, 56 Mo. App. 72; Rowen v. Railway, 82 Mo. App. 24.] If they go beyond this, they are unsound and will not be follOAved. It is evident this court intended no more than this in Miller v. Railway, supra, for the judgment in that case was affirmed Avhen no such question had been submitted to the jury by instruction, the court saying that “both sides seem to haAre claimed that the controversy was one touching the sufficiency of the gate and not touching the question whether the defendant Avas bound to maintain a crossing.” And in the case by the Kansas City Court of Appeals cited, Rowen v. Railway, supra, there certainly must have been an issue or something in the case which does not appear in the opinion calling for the rulings there made as Ave find the views of the same court in Freet v. Railway, 63 Mo. App. 548, on — 382 — this identical question, expressed by the same judge, contra thereto, and this case is not noticed in the Bowen case. Be that as it may, the law is well settled to the effect that when a fact in a case becomes established beyond peradventure and all parties thereafter deal with and treat it as uncontroverted, the court is authorized to treat it as counsel do, as an established and uncontroverted fact. All of the evidence tended to prove and did prove conclusively that the plaintiff’s mare was lawfully in the pasture under an arrangement with Mr. Ince, the proprietor. No one disputed it. The same is true with respect to the crossing, the evidence showing conclusively that the railroad passed through and divided the meadow owned and controlled by one proprietor and under such circumstances as to render the crossing a necessary farm crossing within the contemplation of the statute and the adjudicated law on the subject. [Miller v. Railway, 56 Mo. App. 72.] The defendant, many years before, had recognized the fact that the farm crossing was necessary at that point, and so recognizing, had, in obedience to its obligation, constructed the same and the gates on either side of the track in connection therewith as well and no one at the trial, for it, intimated that such was not the fact. In truth, the facts of the mare being lawfully in the pasture and that the crossing was a necessary farm crossing, were treated by all parties concerned as uncontroverted facts, about which .there was no question, the entire issue in the case being confined to the sufficiency of the fastenings on the gate, and as to what occasioned its opening at the time in question. Under the facts in this record, the court could have properly directed the jury as a matter of law, that plaintiff’s mare was lawfully in the pasture and that the crossing at which defendant maintained the gate was a necessary farm crossing for the very sufficient reason that the facts indisputably established and uncontroverted, produce the — 383 — inevitable conclusion as a matter of law that the mare was lawfully on the lands and that the farm crossing was a necessary farm crossing within the contemplation of the statute. This being true, it was not essential for the court to submit those questions to the jury nor to give guiding directions thereon, for they were not issues in the case and it was not reversible error to submit such uncontroverted questions of law and fact. [Freet v. Railway, 63 Mo. App. 548; Miller v. Railway, 56 Mo. App. 72.] The third point made against this instruction, is that it submitted to the jury the question whether the gate was opened because of the absence of a “hook or latch” thereon, without further instructing the jury what would constitute a hook or latch within the meaning of the statute. The instruction first defined the duty of the railroad in the precise language of the statute imposing it, and then requires the jury to find a breach of this duty and the plaintiff’s loss consequent therefrom, in the following language: “And if you further believe that said mare got onto the said track and was crippled as above stated by reason of the failure and neglect, if any, of the defendant to provide and maintain the gate having the latch or hook as aforesaid, then your verdict must be for the plaintiff.” The argument is pressed that the jury were misled by these words, inasmuch as the gate was not provided with either a hook or a latch, within the common acceptance of these terms, and that it was provided with a latch by means of the chain, etc. It is sufficient to say that the instruction, being in the language of the statute, as it is, was not error in that behalf, [Cooper v. Railway, 39 Mo. App. 489] although it would have been quite proper for the court to have given a further guide with respect to the sufficiency of the gate fastenings. If the defendant desired the jury to be further directed as to what would constitute a sufficient fastening within the mean — 384 — ing of the words “hook” or “latch,” it was competent for it to request the same, which it did, and the court instructed, at its request, as follows: “2. The court instructs the jury that if you believe from the evidence that on the afternoon before plaintiff’s horse was killed, he drove the railroad spike mentioned in evidence in the gate-post in question and that when the chain then on the gate was properly placed upon said spike the same constituted a fastening for said gate which was sufficient to keep the gate reasonably securely fastened under ordinary circumstances, then you cannot find for the plaintiff in this case and your verdict must be for the defendant. “8. The court instructs- the jury that it was not the duty of the defendant railway company to furnish a fastening for said gate that was absolutely secure under all circumstances; and the court further instructs you that if you believe from the evidence that after plaintiff, Ernest Bo-berts, fixed the gate on Sunday afternoon, September 18th, the same had a fastening so as to be reasonably secure under ordinary circumstances, then your verdict should be for the defendant railway company.” This certainly gave the jury to understand that the question for it to decide was not whether the fastening was a hook or a latch in the ordinary acceptance of these words, i. e., the ordinary iron hook and staple, or a sliding latch, but was rather whether the gate was fastened at the time with such a sufficient fastening as to render it a reasonably secure panel of the right of way fence so as to withstand the wind, by which, the clear inference arising from the evidence is, it was opened. And by this instruction, defendant was given the benefit not only of the fastening it had provided, but the additional security of that furnished by plaintiff as well. This placed the matter before the jury — 385 — on most favorable terms' to tbe defendant and it has no reason to complain. 2. Tbe court refused to instruct at defendant’s request, to tbe effect that if tbe gate was opened during tbe night by passers-by or third parties and permitted to remain open, whereby plaintiff’s mare passed through the same onto the track, plaintiff could not recover. This action of the court is complained of as error. There is not a syllable of testimony in the record on which to predicate an instruction on this theory. The evidence all tends to show that no one passed through this gate save Mr. Ince, and he had not done so since the hay harvest, some time before. Had there been evidence tending to prove that parties frequently passed through and left the gate open and from which a reasonable inference to that effect might be drawn, as there was in the case relied upon by appellant, the instruction would have been proper enough. [Biniker v. Railway, 83 Mo. 660.] But inasmuch as there is no.evidence in the case from which the inference may reasonably be drawn that the gate was opened by parties passing by, or by any cause, in fact, other than the very high wind, which prevailed during the night, the court very properly refused the instruction. [Duncan v. Railway, 91 Mo. 67, 3 S. W. 835.] Courts should always, as the learned judge did in this case, confine the instructions to the facts in proof. Cases will not be reversed and remanded for the refusal of instructions requested on mere suppositions or suspicions of counsel, in no way traceable by legitimate inference to the record. 3. The question whether the gate was provided with a sufficient fastening was a fact for the jury and no doubt properly found by it. The point made that the court should have peremptorily directed a verdict for defendant on the evidence, as will appear by reading the statement of facts, is unworthy of the court’s attention and will be overruled without comment. — 386 — Finding no reversible error in tlxe record, the judgment will be affirmed. It is so ordered. Bland, P. J., and Goode, J., concur.