112 Mo. App. 67 | Mo. Ct. App. | 1905
(after stating the facts). — The fact that respondent’s horse got upon appellant’s right of way and was struck by its locomotive and train and so badly injured that it had to be killed, and was killed and buried by appellant’s section men, is not in dispute; nor was the respondent’s evidence, that the horse was of the value of one hundred dollars, controverted by appellant oh the trial.
The main points relied on by appellant for a reversal of the judgment are: first, there is no substantial evidence showing at what point of appellant’s railroad the horse got on the right of way, and second, that while the evidence does not show at what particular point the horse got on the right of way, it all tends to show that it got on at some point within appellant’s switch limits at Madge Station, where appellant was not required by law to inclose its tracks by fence. We will take up the second point first, for if it is available as a defense then the respondent was not entitled to recover and the judgment should be reversed. The evidence shows that in the long ago Madge, a city of mythical name, had a depot and post office and some inhabitants, but that many years since the railroad removed the depot, the post mas
Respondent’s evidence tends to show that the necessary gates and fences along the track at these points would be neither inconvenient nor dangerous to appellant’s employees. The facts in the case, in respect to the situation and surroundings of the so-called switch limits, are not distinguishable from the facts in the case of Duncan v. Railroad, decided by this court and reported in 85 S. W. 661, 111 Mo. App. 193, where it was held:
“Where a switch track ran from the main track of a railroad to a stone quarry, for the sole convenience of the quarry, and the use of the tracks had never been offered to the general public, the tracks at that point were required to be fenced under Rev. St. 1899, section 1105, requiring the fencing o'f tracks passing through or along enclosed fields or uninclosed lands.” The same conclusion, or substantially the same, was arrived at in the still later case of Smith v. Railroad, 85 S. W. 972, 111 Mo. App. 410.
We do not wish to be understood as holding that a depot building or the presence of a station agent is indispensable to constitute a place a station; but we do not think that a point where a switch is maintained for the exclusive accommodation of a mill, rock quarry or mine is a station, although trains do sometimes stop at such point to receive or discharge passengers or freight as a matter of special accommodation. The switches at Madge were for the accommodation of the rock quarries ; they were not there for the transaction of business with the public and the gravel platform was scarcely used at all by the public and we think the evidence fails very far short of showing that it was a station.
In regard to the first point, the evidence is that the land east of the railroad at Madge is open woods and that cattle and horse's running at large graze in these woods; that some years ago appellant built a post and wire fence on the east side of the road to what appellant
The judgment is affirmed.