Neversorry v. Duluth, South Shore & Atlantic Railway Co

73 N.W. 125, 115 Mich. 146, 1897 Mich. LEXIS 1208

• Court: Michigan Supreme Court
• Decided: December 7, 1897
• Status: Published

Opinion

Grant, J.

(after stating the facts). 1. The principal defense urged is that pail road companies and adjacent landowners may contract as to the character of fences, bars, or gates to be provided at farm crossings; and that, when they do so agree, the company is not liable for the loss of animals which enter the right of way through such fences, bars, or gates, and are injured or killed. At the request of defendant, the court instructed the jury as follows :

“If plaintiff’s horses got onto the railroad track by reason of the bars in front of Mr. Crowley’s being put down, either by Mr. Crowley or some one acting under his directions, under the facts in this case the plaintiff cannot recover, regardless of the height of the bars in question. If the bars in question were sufficient to reasonably serve the purpose of turning back such beasts as such bars are generally designed to restrain, then the defendant is not liable to maintain a better one, and your verdict must be for the defendant.”

The case was left to the jury upon the theory that bars • and gates at these farm crossings, which were constructed by agreement, were not required to be of the height and character provided for by the statute, but only of a height and character sufficient to reasonably guard against the intrusion of animals.

At the common law, railroad companies were not required to fence. Williams v. Railroad Co., 2 Mich. 259; Continental Improvement Co. v. Phelps, 47 Mich. 299. The right to compel railroads and landowners to fence is founded upon the police power of the State. Staats v. Railroad Co., 4 Abb. Dec. 287; Corwin v. Railroad Co., 13 N. Y. 46; Flint, etc., R. Co. v. Lull, 28 Mich. 510; Gilson v. Munson, 114 Mich. 671. This statute was adopted, not alone as a protection to the property of adjacent owners, but as a protection to the employes and passengers upon railroad trains. Same authorities; also, Bay City, etc., R. Co. v. Austin, 21 Mich. 390. It follows that the contributory negligence of the plaintiff in permitting his animals to roam at large is no defense to an action where such animals get upon the right of way through the defective fences of the company. Flint, etc., R. Co. v. Lull, supra; Grand Rapids, etc., R. Co. v. Cameron, 45 Mich. 451; McDonald v. Railway Co., 51 Mich. 628.

The statutes of this State, after providing very minutely for the character and height of fences to be erected and maintained by railroad companies, contain the following proviso, which was an amendment to the law in 1885:

“Provided, further, that nothing herein contained shall be construed to prevent the erection of any other fence than that herein provided for, as may be agreed upon in writing between the duly-authorized agent or officer of any railroad corporation and the owner of any land through which the road of such corporation may be in operation.” Act No. 234, Pub. Acts 1885, § 15 (3 How. Stat. § 3377).

While there are' authorities holding that cattle trespassing are not within the protection of this law, yet the weight of authority is to the contrary. 7 Am. & Eng. Enc. Law, 929-932. Evidently, the legislature did not intend to leave the character of these bars and gates at farm crossings, erected by agreement, in doubt or uncertainty, for it provided that the agreement between them must be in writing. The agreement in this case rested in parol. It is true tha Crowley" could not have recovered for damages to his animals which entered the right of way through these bars, because they were just such as he chose to erect and maintain. Enright v. Railroad Co., 33 Cal. 230. When we consider that the broad purpose of this police enactment, under the authorities above cited, is to protect railroad employes and passengers, as well as the property of adjacent owners and others living in the vicinity, and that contributory negligence of the owners of stray animals is no defense, it is impossible to reach the conclusion that a railroad company is entirely relieved from liability by permitting an adjacent owner to put up any such fence, bars, or gates as he may choose. If it were so held, the practical result would be to annul the statute, and relieve the companies from any liaoility whenever they and the adjacent owners see fit to agree to any kind of a fence. They might agree to such a fence as Crowley had put around his inclosure, which was practically little better than no fence at all.

2. There was evidence tending to show that the bars were not properly constructed; that they consisted of three poles, about three inches in diameter, the top one three feet five inches from the ground, the bottom one ten inches, and the middle one halfway between; that two boards were nailed to the posts, with six little pieces laid across them for the poles to rest on; and that the ends of the poles rested loosely on these pieces. Testimony was introduced tending to show that the bars had been frequently found down, and that the section men had sometimes put them up. This was offered to show knowledge on the part of the company of the condition of the bars. If it had been conclusively shown that the bars were properly constructed, this testimony would have been incompetent. No liability would then have attached to the company without showing that the bars were down through its fault. The court, in effect, so instructed the jury. But, in view of our conclusion that the company is liable for negligence in construction, it was competent to show- its knowledge upon this point. The testimony naturally tended to show this, for its employés, in putting up the bars, must necessarily have learnéd their construe tion and condition.

The judgment is affirmed.

The other Justices concurred.