Young v. St. Louis, K. C. & N. Railway Co.

Adams, J.

It is contended by defendant that, as there was no collision between its train and the plaintiff’s horse, it is not liable. In Peru & Indianapolis R’y Co. v. Hasket, 10 Ind., 409 , the defendant’s horse, being on the track where the company had a right to fence, and being frightened by the approach of. the train, ran ahead of it a short distance, and in attempting to jump a culvert fell off one side of the track and was injured by the fall, the train not coming in collision with it. It was held that the company was not liable.

The statute provided for the recovery of damages where “an animal shall be killed or injured by the cars, locomotives or other carriages.”

The decision turned upon the words quoted. It was thought that the use of those words indicated that there must be an actual collision to give a right of recovery.

Our statute is so unlike the Indiana statute we cannot regard that case as authority.

A similar case, however,' arose in Missouri, and under a statute substantially like ours, Lafferty v. H. & St. J. R'y Co., 44 Mo., 292 . The petition averred that the animal “was frightened by the cars and engine of the defendant, and in getting off the track of said railroad was injured.” The defendant demurred to the petition, and the. demurrer was sustained.

*174 Section 1289 of onr Code provides that “ any corporation operating a railway, that fails to fence the same against live stock on all points where such right to fence exists, shall be liable to the owner of any such stock injured or killed by reason of the want of such fence.”

The question for our determination is, was the plaintiff’s horse injured by reason of a want of a fence. Had the horse strayed upon the track at the same point and been killed by lightning, it is evident the company would not have been liable, and yet it is equally'evident that if defendant’s track had been properly fenced the horse would not have been killed. In one sense, then, the horse would have been killed by reason of a want of fence. Again, if the plaintiff’s horse had, while in a frolic with other horses, run upon the track and run into the bridge and been injured, the company would not have been liable. Still, it would be true that in one sense the horse would have been injured by reason of a want of a fence.

1. raxltcoads: liability when not fenced. When, then, may it be said that an animal is injured by reason of a want of a fence, within the meaning of the statute? It is when the want of a fence in connection with , . „ the acts ot the defendant is the proximate cause of the inj ury. The defendant in this case would not have been liable if the horse had run into the bridge and been injured simply through a frolic or freak, because the defendant would have had no reason to apprehend the occurrence of an injury in that way. But when they left the track unfenced, they knew that horses would probably stray upon it from the highway, and if there ivas only one narrow passage for escape from the track when the train approached, they knew that horses on the track would naturally be driven upon the bridge, and if it could be crossed only upon cross ties a foot or more apart, they would naturally fall into the bridge and be inj ured. All this, in the exercise of reasonable foresight, should have been foreseen.

It is claimed, however, by appellant, that the evidence does not show that there was only one narrow passage for escape from the track. The evidence on this point is very meager, but we think that the reasonable inference from it is, that *175 there was no convenient place of -escape except the narrow passage way. If there was any other place, the evidence does not show it. Such, then, being the character of the track, it was entirely natural that the plaintiff’s horse should be driven by that passage and upon the bridge. If there had been ample opportunity for the horse to escape from the track, and yet it had run into the bridge, contrary to the ordinary'conduct of horses, the case would have been different.

In Lafferty v. H. & St. J. R’y Co., we have only the averment that the animal was frightened by the cars and engine of the defendant, and in getting off the track of the railroad was injured. We cannot say that the averment showed a liability on the part of the company. The injury might or might not have been the proximate result of the company’s failure to fence, in connection with the operation of the road. It depended upon facts which the petition failed to state. It is true, the case seemed to turn upon the fact that the petition did not show a collision; but most certainly the damage might be proximate without a collision. Suppose, in.the case at bar, there had been no way of escape at all from the track; the injury would have been no more remote than if the horse had been taken up by physical force and thrown into the bridge. What a horse would naturally do under the circumstances, is the test as to whether the damages are proximate or remote.

While the evidence in this case leaves a possible doubt on that subject, we are inclined to think that the judgment of the court below is correct.

Affirmed.