Missouri, K. T. Ry. v. Lovell , 223 S.W. 1024 ( 1915 )

I cannot agree with the views expressed in the majority opinion nor in the disposition of this case. If the railway company is liable for the injuries sustained by the horses which ran through the fences to escape from what, no doubt, seemed to them an approaching monster, emitting loud and frightening noises and belching forth clouds of smoke and steam, then it seems to me that no less is it liable for the death of the mare in question, which, having escaped from the threatening and imminent danger as she saw it, followed the natural promptings of her equine nature to get back to her companions by the only means of egress that presented itself. To one who knows horses and understands their habits, it would seem that under the circumstances it must have been reasonably anticipated that in all probability she would have attempted to do the very thing she did do, not realizing the danger from the gaps in the walkway selected until after she started onto the trestle and it was too late to turn back. I believe the accident in question is a result which naturally flows in a continuous sequence from the negligence of the railway company in permitting its gate or gap into its right of way to be down or get out of repair, or in failing to have fences and cattle guards on either side of the intersecting public road, thereby inviting loose stock to enter upon such right of way. The case of Ry. Co. v. Dixon, cited in the majority opinion, is believed to be directly in point, and to support the judgment of the trial court as to this item of damage. Appellee also cites Ry. Co. v. Benaist, 122 S.W. 587; Ry. Co. v. Harris, 3 Willson, Civ.Cas.Ct.App. § 224; Ry. Co. v. Mitchell, 4 Willson, Civ.Cas.Ct.App. § 261, 17 S.W. 1079; Ry. Co. v. Cooper,32 Tex. Civ. App. 593, 75 S.W. 329 — all of which in more or less degree upon the point in issue support the Dixon Case. In the last-cited case by this court Judge Speer says:

"The evidence shows that the animal was killed in the appellant's station grounds in the town of Miami, and at a place where it is not required by law to fence its right of way. Ry. Co. v. Blankenbeckler,35 S.W. 331, and authorities there cited. In such case it is incumbent upon the plaintiff to prove more than the mere killing; he must prove that it was negligently done. But this does not mean negligence of the train operatives alone, for any negligence of the defendant proximately causing the injury will suffice to establish liability. In this case the testimony tended to show negligence in the construction and maintenance of some stock pens and wing fences, forming what the witnesses denominate a `pocket,' that was dangerous to stock, and which was the occasion of appellee's mule being caught on the track and killed. Negligence in this respect might be sufficient to show liability."

It is my opinion that the judgment of the trial court should be in all respects affirmed.

On Appellee's Motion for Rehearing. This cause has been held pending the answer of the Supreme Court to a certified question presented to it December 4, 1915. In answer to the question propounded to that court, the following is said by Chief Justice Phillips:

"The effect of the negligence of the defendant with respect to the condition of its fence was to place the animals within a narrow inclosure, from which, on becoming frightened because of its further negligence in sounding the whistle and bell and blowing off steam from the engine, they would naturally seek egress, in a manner not necessarily careful of their own safety and probably in disregard of it. There was warrant, therefore, for a jury's concluding that the negligence of the defendant was responsible for the mare's getting to a place on the right of way beyond the bridge, separated from the other horses and away from the place to which she was accustomed. A jury could have reasonably concluded, in other words, that because of the negligence of the defendant the mare was placed in a position of possible danger if she attempted to recross the bridge.

"The test of the question is, what would have been reasonably anticipated as the action of the mare in that situation? It could not have been reasonably expected that she would certainly remain where she was, or continua down the right of way from the bridge. The more probable anticipation would have been that she would do exactly as she did — attempt by recrossing the bridge either to rejoin the other horses, or return to the habitual place from which she had first strayed, and then been driven away through her fright.

"That was a natural thing for a horse in her predicament to do, and might, therefore, have been reasonably foreseen by the servants of the defendant to whose negligence her situation was due. The question was one of fact." 221 S.W. 929.

Hence the former judgment of the majority is set aside, and the judgment of the trial court is in all things affirmed, with costs of the appeal taxed against appellants.