
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. GILBERT.
    (No. 370-3375.)
    (Commission of Appeals of Texas, Section A.
    Jan. 10, 1923.)
    1. Railroads ⅞⅛=>413(1) — Company not absolutely liable for stock killed at private crossing required by statute or agreement.
    Rev. St. art. 6603, making a railroad company liable for stock killed by its locomotive, does not impose an absolute liability where the company is compelled by article 6486 to make, openings through its fence and over its roadbed, or where the openings are made by agreement with the owner of the land through which the right of way passes and for his convenience, or with his acquiescence.
    2. Railroads <⅜=>441 (7)— Opening in fence on private lands presumed proper.
    Where the track of a railway company divides the inclosure of a private owner, under which circumstances Rev. St. art. 6486, requires one opening to be made in the railroad’s fence, without specifying the .nature of the opening, it must he presumed that the opening which was left in the fence was such as met the requirements of the statute, in the absence of a shojving to the contrary.
    
      3. Railroads &wkey;413(7) — Opening on private lands used for 20 years held compliance with statute.
    Where an opening required by Rev. St. art. 6486, for a private crossing over a railroad track intersecting an inclosed pasture had been used in that condition for more than 20 years, and it was to the convenience of the owner to have an opening without gates instead of a closed one, and the owner had made no complaint of the opening during the period of its existence, there is a presumption the owner has acquiesced in the opening.
    4. Raiiroads &wkey;439(8) — Stock owner’s acquiescence in use of opening without gates is special defense.
    In an action against a railroad for the killing of live stock at a private crossing, .the agreement of the owner of the stock to the use of a crossing without gates, or his acquiescence in such use, is a special defense which should be specially pleaded' and proved.
    Certified Questions from Court of Civil Appeals of Second Supreme Judicial District.
    Action by H. C. Gilbert against the St. Louis Southwestern Railway Company of Texas to recover damages for the killing of live stock. Judgment for plaintiff, and defendant appealed to the Court of Civil Appeals, which certified four questions to the Supreme Court.
    Questions answerd in the affirmative.
    Thompson, Barwise, Wharton & Hiner, F. B. Walker, and Alfred McKnight, all of Fort Worth, E. B. Perkins, of Dallas, and Phillips, Tramnjcll & Caldwell, of Fort Worth, for appellant.
    Baskin & Eastus and David Greines, all of Fort Worth, for appellee.
   SPENCER, P. J.

According to the certificate of the Court of Civil Appeals, H. C. Gilbert, appellee, owned certain pasture land consisting of about 40 acres inclosed by a fence, located and situated near the town of Smithfield in Tarrant county, Tex. The St. Louis Southwestern Railway Company of Texas, appellant, owns a right of way and track crossing the inclosed pasture land of appellee, dividing it into two parts.

The right of way and track were fenced on either side with the exception of an open crossing on appellant’s track, which crossing was provided with cattle guards and lines of fence connecting the cattle guards with the right of way fences. There was no house upon the premises, but appellee lived about a mile therefrom.

The premises were tlsed for pasture purposes only, and one part of the inclosed premises, which was divided by the railway of appellant, contained a tank or watering place for stock. Appellee had owned the premises for about 25 years and the railway track crossing the inclosed premises, the fence inclosing the right of way, and the open crossing were upon the land when appellee purchased it, or were built soon thereafter. The opening or crossing is a private one not used by the public and its use limited to the owner of the land, in order that he might have passage for himself and live stock between one part of the premises and the other.

On the night of November 18, 1918, three mules belonging to appellee, which were in the pasture in question, were killed on the open crossing by the train and cars belonging to and being operated by appellant. No evidence as to appellant’s negligence was offered; no witness testified to having witnessed the accident.

Upon original hearing in the Court of Civil Appeals the cause was reversed and remanded, and the first motion for rehearing filed by appellee was overruled. Mr. Justice Buck dissented, however, in overruling the first motion for rehearing. A second motion for reheáring and a motion to certify was granted, and the court certifies the following questions, based upon the foregoing statement of facts:

“(1) Was the said tracts and roadbed of the appellant, which ran through the said inclosed premises of the appellee, fenced as required by article 6603 of the Revised Statutes of the State of Texas?
“(2) Was the said open crossing over the said roadbed and tracks such an opening as is authorized or required by article 6486 of the Revised Statutes of the State of Texas?
“(3) Where the facts show that for 20 or 25 years the owner of the land has used the open crossing connecting his lands, and it is to- his convenience to have an open crossing rather than a closed one, and the evidence fails to show that he has ever made any complaint to the railway company, is there a presumption of fact that such crossing was put there in the first place at the instance of the owner, or that he has concurred in the open crossing as being-more suitable to his use of his premises?
“(4) If the court answers the preceding question in the affirmative, and decides that there is such a presumption of fact, then is this a special defense, ‘which should be specially pleaded and proved?”

Articles 6486 and 6603, Revised Givil Statutes of 1911, read as follows:

“Art. 6486. All railway corporations in this state, which have or which may hereafter fence their right of way, may be required to make openings or crossings through their fence and over their roadbed along their right of way every one and one-half miles thereof; provided, that, if such fence shall divide any inclosure, that at least one opening shall be made in said fence within such inclosure:”
“Art. 6603. Each and every railroad company shall be liable to the owner for the value of all stock killed or injured by the locomotives and cars of such railroad company in running over their respective railways, which may be recovered by suit before any court having competent jurisdiction of the amount. Such liability shall also exist in counties'and subdivisions of counties which adopt the stock law prohibiting the running at large of horses, mules, jacks, jennets and cattle; provided, however, that in all cases, if the railroad company fence its road, it shall only be liable for injury resulting from a want of ordinary care.”

The decision of the first question certified depends upon whether the railway company had fenced its road, at the point where the stock were killed, in such a manner as to exempt it from absolute liability.

The Supreme Court in construing article 6603 has repeatedly held that, where a railroad company has not fenced its track, where it is lawful to do so, its liability for injury to live stock, caused by operations of its locomotives and cars, is absolute. Fort Worth & R. G. Ry. Co. v. Swan, 97 Tex. 338, 78 S. W. 920; Texas & P. Ry. Co. v. Webb, 102 Tex. 210, 114 S. W. 1171. If live stock be killed by the operation of locomotives and cars at a point where the track is not fenced, the law1 presumes negligence. If, however, the railway company show that public necessity or convenience or the safety of its employés, in handling its trains, require that the track, at the point where the accident occurred, be left unfenced, it is thereby absolved from liability unless the injury has resulted from the want of ordinary care on the part of its servants to prevent the injury. International & G. N. Ry. v. Dunham, 68 Tex. 231, 4 S. W. 472, 2 Am. St. Rep. 484; Fort Worth & R. G. Ry. v. Swan, supra.

With as much reason, do we think, railways should be absolved from absolute liability (1) in those cases in which they may in pursuance of a statute be compelled to make openings through their fence and over their roadbed, and (2) in those cases where by agreement with the owner and for his convenience an opening without gates is made and maintained; or where by his concurrence or acquiescence such an opening is made and maintained.

Tn making provision for an opening in the’ fence of a railway company for the convenience of the owner, whore the track of a railway company divides the owner’s .inclosure (article 64S6), the Legislature has not outlined the nature or character of the opening to be made, but has left this matter of detail to be determined by the owner of the inclosure and the railway company. Missouri, K. & T. Ry. Go. of Texas v. Hanacek, 93 Tex. 446, 55 S. W. 1117. It not appearing from the facts stated in the certificate that the opening was insufficient or inappropriate to meet the needs of appellee, it should be held that the opening is such an one as meets the requirement of article 6486.

The statute requiring the railway company to make openings in its fence where its road runs through an inclosure of a landowner has been in force since 1887. As has already been pointed out, the nature and character of the opening has not been suggested by the Legislature; but this matter has. been left to the determination of the parties. There is, we think, a presumption that the law with reference to providing an opening has been complied with, if the facts with reasonable certainty indicate that there was an intention upon the part of the railway company to do so, and the owner, by long usage of the opening so made, has concurred or acquiesced in ■ the opening so made. Considering the facts that for 20 or 25 years the owner of the land has used the opening in question, that it is to his convenience to have an opening without gates instead of a closed one, and that the evidence further shows that he failed to make any complaint to the railway company of the opening used, there is, we think, a presumption of fact that he has concurred and acquiesced in the opening without gates as being more suitable to his use of the premises.

The owner’s agreement to use an opening without gates or his acquiescence in the use of such an opening is a matter of special defense which, to avail the railway company, should be specially pleaded and proved. The first, second, third, and fourth questions are therefore answered in the affirmative.

CURETON, C. J.

The opinion of the Commission of Appeals answering certified question is adopted, and ordered certified to the Court of Civil Appeals. 
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