Missouri, K. T. R. Co. v. Minor , 75 Okla. 10 ( 1917 )

Petitions for rehearing the opinion of Mr. Commissioner HOOKER, reversing the judgment of the court below, have been filed on behalf of both the plaintiff in error and the defendant in error; the former being based upon the ground that the opinion is wrong in holding that the plaintiff was entitled to recover for the animal injured, and the latter upon the ground that the instruction which the Commissioner held constitutes reversible error, states the law correctly. As these are the only questions presented for rehearing, they are the only ones we will notice in the further consideration of this cause by the court.

We are of the opinion that the authorities cited by the learned Commissioner support the conclusion reached by him that the plaintiff was entitled to recover for the animal injured, and that M., O. G. R. Co. v. Brown, 46 Okla. 735,148 P. 1040, and Box v. C., R.I. P. R. Co., 56 Okla. 243,155 P. 1144, relied upon by counsel for plaintiff in error, are not in point to the contrary.

It is true, as counsel contends, that the common law did not impose upon railways the duty of fencing their right of way, but section 1435, supra, does this in the most clear and explicit language. The plaintiff charges the defendant with a violation of this statute, and that this violation resulted in injury to his horse by coming in contact with the company's locomotive. As the violation of a statute constitutes actionable negligence, where, as here, it is alleged and proven that the violation of the statute was the proximate cause of the injury complained of, the plaintiff is entitled to recover. In these circumstances the most that can be claimed for section 1438, supra, is that it constitutes a limitation upon the general language of section 1435, and we do not believe that such was the intention of the Legislature.

Inasmuch as the instruction which the Commissioner holds was erroneous was objected to solely upon the ground that it stated in effect that the plaintiff in proper circumstances would be entitled to recover for the animal injured, of course, in View of the holding on that point, it was not error to give it. The part of the Commissioner's opinion dealing with this question will be stricken out, and the balance of the opinion, as thus modified and hereby supplemented, will be approved.

For the reasons stated, the judgment of the court below is affirmed.

All the Justices concur.