72 Neb. 793 | Neb. | 1904
Lead Opinion
The sole question presented in this case is whether or not the railroad company is liable for the killing of six hogs belonging to defendant in error, which were killed at a point Avithin the station grounds at the station of WarsaAV, in Howard county. Warsaw is a flag station on the line of the railroad, there is no toAArn or village at the station, but there is a platform, side track, elevator, office and scales, stock-yards, coal house and corn-cribs. The railroad track runs nearly straight east and west, a side track being on the south side of the main track about 900 feet long. At this point for a distance of about 1,200 feet the right of way is 200 feet Avide, on the north side of the track being 50 feet and on the south side 150 feet from the center line of the track. The elevator, stock-yards, corn-crib and coal house are all situated upon the south side of the track, while the platform is upon the north side. There is also upon these grounds a house which is occupied part of the year by a man Avho attends to buying and shipping grain at the elevator. A public higlrway runs across the right of Avay betAveen the stock-yards and the elevator almost at right angles to the track. The evidence shoAvs that WarsaAV is a time-card station which has the time for the arrival and departure of trains set down; that no ticket office or Avaiting room is there, and no tickets are. sold at the. station, but that tickets are sold from other points to that place. There are usually from 40 to 50 car loads of freight a year, and grain, live stock, emigrant .movables, and machinery, baggage and tranks, and people are loaded and unloaded at the platform, stock is shipped and received at the stock-yards, and coal received and sold at the coal house.
Section 1, article I, chapter 72, Compiled Statutes, 1903 (Annotated Statutes, 10020), requires all railroads to erect and maintain fences on the sides of their railroad sufficient to prevent cattle, horses, sheep and hogs from getting on the railroad, except at the crossings of public
In Union P. R. Co. v. Knowlton, 48 Neb. 751, an animal was killed at a point about midway between the. limits of the. city of Lincoln and the village of West Lincoln. On the part of the railroad company it was contended that the point was within the actual limits of the Lincoln yard; that the track was in constant use in the making up of trains, and that a fence thereon would be dangerous to employees. The court say:
“It is conclusively shown that the defendant’s depot grounds are situated more than a mile distant from the point of the collision. Nor is there in the record any*796 evidence tending to prove; that the use of the track between Lincoln and West Lincoln was necessary in the making up of trains, or that the facilities afforded by the tracks within the yard limits were insufficient for that purpose. The most that can be claimed by the defendant is that it is convenient for it to use the track in question in making up its trains and that it was occasionally used for that purpose. The legislature could not have intended the provision of the exception above noted to include tracks outside of the limits of cities, towns and villages, remote as is this one from the depot grounds and side tracks and not necessary for use in making up trains.”
In Minnesota a similar statute made no exceptions as to fencing within cities or villages, and the court held that there was no reason why the requirements of the act should not apply within cities and villages as well as in the country, and that other provisions of the law with reference to obstructing streets and highways would prevent the inclosure of tin; railroad track at such points. The court further said, however:
“There is another exception implied as to places required to be left open by the public necessity or convenience, such as grounds about stations which are used for the entrance or exit of passengers, or the receipt and delivery of freight; but this public convenience is the limit of the exception.” Greeley v. St. P., M. & M. R. Co., 33 Minn. 136, 22 N. W. 179.
The statute is an exercise of the police power of the state enacted for the welfare not of the railroad but of the people. The object of statutes of this nature is primarily the benefit of the public, and secondarily for the benefit of private individuals. In its construction,- therefore, courts must give that construction which is most for the public benefit, and must consider in a secondary degree what is the interest of the individual. To enforce the statute accordingly the letter would effectually deprive the public of all the convenience and advantage obtained by the location of a railroad station, grain and coal market,
We agree therefore with the contention of the plaintiff in error that a railroad company is not bound to fence its tracks in such a manner as to exclude the public from proper access to its station grounds. The failure to fence is excusable, however, only to an extent sufficient to afford the public and the railroad company necessary facilities for transacting the business reasonably to be expected at this locality. While the railroad company would be ex
It appears from the plat that both sides of the highway running north from the right of way are fenced, and that the tract' of land from whence the hogs went upon the right of way was not open to the public highAvay.. To fence the right of way at this point would in no manner interfere Avith the access of the public to the transportation facilities afforded by the station. It was private property over which the hogs came, on which the public Avould be trespassers. Under the circumstances presented by this case the principle invoked by the plaintiff in error does not apply. We cannot speculate upon the proposition as to Avhether, even if the fence had been along the north side of the right of way, the hogs would have gotten onto the track by traveling east to the line of the highway. The plat in evidence shows a fence along the highway, but whether it is hog tight or not does not appear. There is no evidence to show that they came upon the right of Avay at the highway, and there is evidence to shoAv that they came upon the right of Avay at a point where the track might have been fenced without inconvenience to the public or the employees of plaintiff in error. We believe it was the duty of the railroad company under the statute to have a fence at this point, and that they are therefore liable for the actual value of the hogs killed.
We recommend that the judgment of the district court be affirmed.
For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.
Rehearing
The following opinion on rehearing was filed December 7, 1906. Reversed:
In the former opinion in this case, ante, p. 793, it was held: “Where a railroad company outside of the limits of a city, town or village has established a flag station, with platform, elevator, office and scales, coal house, corn-cribs, etc., for public use, it is not bound, under the provisions of the statute requiring railroads to be fenced, to fence its road in such a manner as to prevent the public from having proper access to its station grounds.” It was further held: “The failure to fence is excusable, however, only to an extent sufficient to afford the public and the railroad company necessary facilities for transacting the business reasonably to be expected at this locality.” While we still adhere to the doctrines thus laid down, we are convinced that some of the language used in the discussion in the former opinion perhaps conveyed an erroneous impression, and in some respects failed to give due
The statute requires the railroad company to erect and maintain fences on the sides of the railroad “suitable and amply sufficient to prevent cattle, horses, sheep, and hogs from getting on the said railroad,” except at the crossings of public roads and highways, and within the limits of toAvns, cities and villages, and to construct and maintain at all road crossings cattle-guards suitable and sufficient for the same purpose. The intention of the statute seems to be to require the complete inclosure of the railroad track by means of fences and cattle-guards, so as to prevent
There remains then the question whether the public convenience excused the railroad company from inclosing its tracks at the point where the hogs came upon the right of way. They were killed close to the elevator on the south side of the track, and apparently had passed from the rye field directly north across the tracks to the vicinity of the elevator. If, as we now hold, the statute requires the complete inclosure of the track with fences and cattle-guards at points where the company is required to fence, then an inclosure of that portion of the grounds would exclude the public from the shipping and receiving facilities afforded by the elevator, coal house and corn-cribs, and thus largely deprive it of the benefits afforded by the railway station. This the company is not compelled to do, and hence was excused from inclosing its tracks at that point. The doctrine of the former opinion is sound in the main, but it failed to give due weight to the necessity of .complete inclosure by fences and cattle-guards at points where a railroad company is required to fence. The conclusion reached and the fourth paragraph of the syllabus to the former opinion are therefore set aside, and the judgment of the district court is
Reversed,
Concurrence Opinion
concurring.
Eailroad companies are not required to fence their station grounds, if free access to the grounds by the public is necessary for the public convenience in transacting business with the road. When, for the convenience of the public, free access to the station grounds is necessary, the railroad company is not required to fence any part of such grounds, so as to exclude the public from access thereto at any point. If domestic animals running at large go upon such station grounds, and as a result of such trespass are injured by the ordinary operation of the road, the company is not liable for damages so occasioned. The company cannot extend such station grounds beyond reasonable requirements for the convenience of the public and the safety of the employees of the company. It must fence . its right of way so far as it can do so without unreasonably limiting the area and extent of its station grounds. In this case the animals in question were trespassing upon the station grounds of the company, and while so trespassing were injured by the ordinary operation of tlie company’s trains. The defendant therefore is not liable. The fact that the animals before going upon the station grounds may have crossed the right of way at a point where the same should have been fenced is immaterial.
For these reasons, I concur in the conclusion reached.