Oyler v. Quincy, Omaha & Kansas City Railroad

JOHNSON, J.

— This suit originated before a justice of the peace in Taylor township, Grundy county. The complaint is in three counts. In the first, double damages are sought under sectionll05, Revised Statutes 1899, for the loss of a mule killed by one of defendant’s trains. In the second, single damages are asked for injuries sustained by another mule in its efforts to escape the same train. The third count is founded-upon a cause of action assigned by Dr. H. W. Oyler to plaintiff based upon a claim for double damages for the killing of a horse by another of defendant’s trains. It is alleged the two mules entered upon defendant’s right of way on the night of December 1, 1903, by jumping over an insuffi *379 cient cattle guard maintained in Taylor township half a mile east of the town of Brimson at a point where the defendant’s railroad is crossed by a public road. The horse is stated to have entered the right of way during the night of -, 1902 by jumping oyer a cattle guard maintained at another public road crossing in the same township, and also charged to have been insufficient to turn stock. At the trial in the circuit court upon appeal plaintiff recovered a verdict upon each count. Judgment was entered upon the first and third counts for double damages, and upon the second for the amount of the verdict. Defendant appealed.

It is claimed plaintiff failed to offer any evidence tending to show that defendant owned the railroad mentioned. The proof of this fact,- the burden of which was upon plaintiff, though meager was sufficient. After it was introduced plaintiff’s counsel throughout the trial was permitted to assume as proven in the examination of witnesses the fact of defendant’s ownership of the road without objection. Defendant offered no evidence and gave no intimation of purpose to resist the action on this ground. Under such circumstances full proof should not be exacted. [Geiser v. Railway, 61 Mo. App. 462 ; Keltenbaugh v. Railroad, 34 Mo. App. 148 ; Lindsay v. Railroad, 36 Mo. App. 51 .]

It is contended that the peremptory instruction asked by defendant should have been given. The claim is made that the evidence fails to show that any of the animals mentioned in the complaint was struck or injured upon the railroad. There was no direct proof offered, as the accidents both occurred during the night and, so far as known, were not witnessed by anyone; but the facts and circumstances detailed in evidence very strongly indicated that the two animals killed were struck by defendant’s trains, and that the one injured received its injuries from running upon the ties and other component parts of defendant’s road in fleeing before the approaching train. Defendant says that, as sec *380 tion 1105 provides for the imposition of a penalty in addition to compensatory damages it is incumbent upon the plaintiff to prove by competent evidence the liability of defendant for the injuries sustained. This is true, but the character of proof required is the same in this class of cases as in others. The existence of ultimate facts may be found from other facts and circumstances in proof. [Jones v. Railway, 52 Mo. App. 381 ; Brown v. Railroad, 104 Mo. App. 691 .]

Prom the evidence adduced it appears that the three animals entered the right of way from public roads by passing over defectively constructed cattle guards. Their subsequent movements were plainly indicated by the tracks and other marks left by them. The two mules proceeded along the right of way several hundred yards from the place of entry. During the night the engine of a passing train was heard to sound the stock signal. The mules turned and ran upon the track and in close proximity thereto before the approaching train. One of them was found the next morning beside the track with three legs broken; the other escaped into the public road with injuries sustained from running at high speed upon the hard substances of the roadbed. The injury to the horse was also clearly traced to a collision with one of defendant’s trains, and its presence upon the track shown to have been occasioned by its passage from the public road over a defectively constructed cattle guard. The evidence was sufficient to go to the jury. Defendant further says the demurrer to the evidence should have been sustained, for the reason that, as it was charged in the complaint and shown in proof the railroad at the points of entry ran through inclosed lands and plaintiff was not an adjoining proprietor, no recovery could be had because sections 1105 and 1106, Revised Statutes 1899, are intended for the benefit of the proprietors of the adjoining lands and not for the benefit of owners of trespassing animals. A sufficient answer to this is that the animals did not reach the right of way from the lands *381 of an adjoining owner, bnt directly from the public highway. It was defendant’s duty under the statute to interpose a cattle guard between its property and the road reasonably sufficient to turn stock, and for a breach of this duty it became liable to any one whose stock is injured thereby. Moreover, the duty to fence the right of way through inclosed fields does not inure solely to the benefit of the adjoining owner. If the lands of such owner .are not inclosed by a lawful fence and the stock of a stranger reaches the railroad over them, the company is liable for injuries inflicted by its trains if its right of way is not inclosed by a lawful fence and the stock enters on that account. [Reed v. Railroad, 112 Mo. App. 575 ; Rinehart v. Railroad, 80 S. W. 910 .]

Special objections are urged against the allowance of a recovery under the second count. It is conceded that as the mule did not come into contact with a passing train an action for double damages does not lie under section 1105. Counsel for defendant say that the action cannot be maintained under section 1106 for several reasons, as follows: Cattle guards are not required to be erected and maintained under this section; recovery may he had only in case the stock goes upon the right of way at a place where it is not inclosed by a lawful fence on both sides, and Avill not be permitted without it is shown the injuries were inflicted by the animal being frightened and run against the fence or into a culvert, bridge, slough or mire, or other object along the line of road. And on this last point deféndant calls attention to the fact that the mule was not injured from any of these causes specified in the statute, but the charge is that it was frightened and pursued, “over the ties and other hard substances and material of said railroad track and caused to become sore, lame and sick and unable for Avork and use.”

The remedies afforded under these sections of the statute relating to the recovery of compensatory damages are not exclusive but cumulative. Independent of *382 them, a cause of action exists for the enforcement of common law remedy in favor of the owner of stock negligently injured. The negligence pleaded and proven in such cases may be either actual or constructive, by which latter term is meant the failure to perform the duty imposed by statute. If the company fails to erect and maintain the kind of inclosure required by law, and through such breach of duty stock strays upon the right of way and is injured by running along the hard substances of the roadbed in escaping from approaching trains, such facts constitute negligence and. will support a recovery. [Gorman v. Railroad, 26 Mo. 441 ; Hill v. Railroad, 49 Mo. App. 520 , and cases cited; Hill v. Railroad, 121 Mo. 477 .]

Finally, it is said the demurrer should have been sustained as to the third count because it was disclosed by the evidence that the horse was struck by the train, if at all, at a place Avhere the road ran through an incorporated town and not required by law to be fenced. We do not so understand the evidence. The point of entry upon the right of way and of collision with the train were both outside of the town limits. The demurrer to the evidence was properly overruled.

Objections made to the instructions given are answered in the views expressed. The case was fairly submitted. Judgment is affirmed.

All concur.