138 Mo. App. 408 | Mo. Ct. App. | 1909
— A stallion and two fillies owned by plaintiff strayed to defendant’s railroad track at a point near the incorporated town of Clyde and were killed by a passing train. Plaintiff brought this suit' to recover single damages for the killing of the animals. The cause was tried to a jury resulting in a verdict and judgment for plaintiff. Afterward the court sustained defendant’s motion for a new trial on the grounds: First. That the petition is insufficient to sustain a judgment. Second. That while there was
The petition is as follows: Plaintiff for his second cause of action states that on May 13, 1906, defendant was and now is a corporation running and operating a railroad through Nodaway county, State of Missouri, and by and through a station designated Clyde on its said railroad in said county; that adjoining its depot grounds at said station to the west thereof and on the north side of its track or roadbed, defendant maintained a scope of right of way one hundred and fifty feet by two hundred feet, unused by defendant and unfenced, forming a pocket or cul-de-sac, and at date herein complained of, was overgrown with succulent grasses, inviting to live stock, to graze thereon. That on said date, in said county, in close proximity to said station of Clyde, plaintiff was the owner of certain live stock, to-wit: One iron gray stallion, two years old, two more colts one year old, commonly called “fillies,” said stallion of the value of three hundred dollars and said fillies of the value of one hundred dollars each.
That on said date said stallion and fillies strayed and went in and upon the right of way grounds and railroad track of defendant, at a point immediately west of said station on the one hundred and fifty by two hundred feet of unfenced right of way described aforesaid, and from thence on to the unfenced track of defendant at said point and place, and were struck by a locomotive and train of cars, then and there run and operated by defendant, killing one of said fillies
Wherefore he prays judgment for said sum of five hundred dollars and costs of suit therefor.”
The three instructions given at the request of plaintiff and afterward pronounced to be erroneous in the order granting a new trial are as follows:
“1. The court instructs the jury that, though you may believe from the evidence that plaintiff’s horses were killed or injured within the switch limits of defendant’s station of Clyde and that said switch limits were not in excess of such reasonable length as to enable defendant to conveniently carry on its business at said station, yet you are instructed that, beyond the necessary station or depot grounds at said station, the defendant was required to fence its right of way on the sides of its lines of track so near to its line of track as not to interfere with its employees or endanger their, safety in making switches and handling its trains, provided same is outside of the corporate limits of said station and not intersected by any platted streets or public crossing; and if you find from the evidence that, beyond the limits of reasonably necessary depot or station ground at said station, and outside of the cor
2. The court instructs the jury that defendant is not required to fence its track within reasonable switch limits at a station on its line of railroad, or to fence its right of way so close to said tracks as to endanger the safety of its employees in handling its trains and transacting the lawful business of the company at a station; but is not permitted to leave open right of way ground on the sides of its track that are unused and unnecessary for the purposes aforesaid, and if you find from the evidence in this case that defendant did leave unfenced right of way ground at the point complained of, that was not used or necessary for the purposes aforesaid and that solely by reason of such unfenced right of way grounds, plaintiff’s horses strayed or entered thereon and from thence onto defendant’s track and were killed or injured, you will find for plaintiff in such sum as you may find from the evidence to be the value of such horses as were killed and any
3. The court instructs the jury that defendant is not permitted to leave more unfenced track and right of way at its station than is reasonably necessary for depot and station ground for the convenient transaction of business between the public and said railroad, in the reception and discharge of freight and passengers at said point and not more unfenced right of way and track for switch limits than is reasonably necessary for unimpeded use by its employees in making switches and handling its trains, and if you find from the evidence that defendant left more ground at said station outside of that used or needed for the purposes aforesaid, and outside of the corporate limits of said town, and that solely by reason of such unfenced ground and track plaintiff’s horses strayed or entered thereon and were killed and injured by an engine or train of defendant operated thereon by defendant, you will find for plaintiff and assess his damages at the value of the animals killed, as you may find from the evidence, and damage to any animal injured to the extent of such injury, not to exceed the total value of $450.”
Prom the facts stated in the petition and submitted in the instructions as well as from the statements in the briefs of counsel, we assume that the subjoined plat copied from the brief of defendant’s counsel correctly represents the locality in question.
It will be observed that the gravaman of the cause of action pleaded in the petition and submitted .in the instructions is not the failure of the defendant to enclose its track “where the same passes through, along or adjoining enclosed or cultivated fields or unenclosed lands” but consists entirely of the omission of defendant to enclose a tract of land it owned on one side of the track. Under the theory of the cause of action asserted, it may have been impracticable and, therefore, not required of defendant to place the eastern end of its track enclosure at the point where the town limit bisects the railroad tracks instead of placing it at a point two hundred feet west of that line, and still defendant would be required by law to enclose its land on the north side of the track which intervened between the corporation line and the nearest practicable point
■ Notwithstanding the petition fails, as we have shown, to state a cause of action, we think it may be amended to state a good cause predicated on the absénce of an enclosure where the track should have been enclosed. Though it appears from the facts before us that the switch tracks extended no further into rural territory than was necessary to the proper transaction of defendant’s business at Clyde, the proof adduced by plaintiff might present that question as one of fact for the jury to solve. And should it develop as a matter of law that the switch tracks as maintained were proper and necessary, the further issue might be raised by evidence that the east end of the track enclosure could have been placed as far east as the corporation line
No liability attaches to a railroad company for failure to put a cattle-guard in a place where to do so would endanger the lives or limbs of its employees. [Gilpin v. Railway, 197 Mo. 319; Bridges v. Railway, 132 Mo. App. 576; Edie v. Railroad, 133 Mo. App. 9.]
The issue of whether a cattle-guard placed at a given point outside the limits of a town but near a station would be a menace to the safety of train operatives in performing necessary work in the operation of trains and ears, etc., at the station is one of law for the court in cases where but one inference may be drawn from the evidence, but “where essential facts are in dispute or where' the inference to be drawn from conceded facts might be a subject of difference among reasonable minds, the question of whether a necessity did exist for the tracks to be uninclosed at the point in controversy should be sent to the jury as an issue of fact.” [Edie v. Railroad, supra.]
It follows from what we have said that the judgment must be affirmed.