28 Mo. App. 556 | Mo. Ct. App. | 1888
Plaintiff sues for the loss of a cow killed by defendant’s cars. He asked and obtained double damages under section 809, Revised Statutes, and defendant appeals. The allegation was, and the proof showed, the cow strayed upon defendant’s track where it was unfenced, and not at a public crossing, nor within the limits of an incorporated city or town, but at a point where the road runs through unenclosed lands. But defendant seeks a reversal of the judgment on the ground that the tracks were used for passing trains, for switch
Of its own motion the court gave the following instruction :
“1. If you find that the cow got on the track, at a place where there was a side track, and that this side track had two or more tracks leading out of it, and that all these side tracks were not in the limits of any village, and were not in connection with any depot, but were used for standing cars and switching cars, it was still incumbent upon the defendant to fence them, if they run through uninclosed lands.”
The instruction was properly given under the evidence in this case. Morris v. Railroad, 58 Mo. 78; Russell v. Railroad, 83 Mo. 507; s. c., 26 Mo. App. 368. There was no evidence offered by defendant to show that those grounds were used in connection with a station, and that it was necessary for the transaction of business with the public, and the reception and discharge of freight or passengers, that the grounds should be kept open.
The rule in respect to the question presented here is, that, though the point of injury is within switch grounds, and though such grounds be used in connection with a depot or station, the railroad company must nevertheless erect and maintain fences and cattle-guards, unless such fences would interfere with the transaction of business, to the inconvenience of the public. The test is, whether it is necessary for the transaction of business with the public that such grounds should be left open.
1 think the judgment should be affirmed.
