Davenport v. Chicago, Burlington & Northern Railroad ( 1890 )

LyoN, J.

The gate in question, with its appliances for fastening, as originally constructed, undoubtedly fulfilled the requirements of the statute, and was a sufficient gate. This is not controverted. The only negligence imputed to the railroad company was its failure to restore the upper hook or fastening to its former position after the post had become turned. If that hook was essential to the security of the gate, such'failure may have been negligence on the part of the defendant. But the evidence is entirely satisfactory that the absence of the hook did not affect, to any appreciable extent, the efficiency of the gate as an obstacle to the escape of animals from the pasture to the track. The gate was constructed to resist pressure from the west or pasture side of it, from which side only animals would attempt to pass it. When the board next the lowest board rested on the hook, the gate was level, and above the lawful height, and was just as effectual an obstacle to the escape of animals from the pasture as it would have been had the upper hook been in place, with the top board resting upon it. Had the gate been properly closed on the night in question it would have offered no greater inducement to plaintiff’s horse to jump it, and would have made it no easier for him to do so, than it would had both hooks been in position. Tho absence of the upper hook could have had no influence in causing the gate to be left improperly closed and fastened. Neither was it any easier for the horses to jump the gate when thus improperly closed than it would have been had both hooks been in place.

Hence we conclude that, under the undisputed evidence, the absence of the upper hook was not negligence on the part of the defendant which contributed directly to the killing of plaintiff’s horses. Under all the authorities, the railroad company is not liable for the negligence of the person who, without its knowledge, left the gate insufficiently closed so recently before the horses were killed.

It necessarily results from the foregoing views that the motion for a nonsuit submitted at the close of the testimony should have been granted. The same having been denied, the motion for a new trial should have prevailed. The judgment of the circuit court must therefore be reversed, and the cause will be remanded for a new trial.

By the Court.— Ordered accordingly.