(аfter stating the facts as above).— As will be seen from the foregoing statement, the point where the respondent’s horse came upon the appellant’s railroad tracks and was killed is about one thousand feet northeast of the depot and about five hundred feet in the same direction from the switch-block or apex of the switch. The horse was killed within the switch limits — that is, between the apex of the switch and the cattle-guard, about fifty or one hundred feet southwest of the cattle-guard. There were long passing and storage tracks in a southwesterly direction from the depot commencing some five hundred feet from it and extending farther on southwest, which were largely used by the company in business in connection with the local station. The appellant’s brief concedes its liability for double damages unless the railroad company is excused from fencing the point where the horsé was injured on account of its being reasonably necessary for switching and depot grounds, due regard being had to the business
I. The appellant has assigned as error that the trial court should as a matter of law have declared by instructions that the point where the injury took place was within the the necessary and reasonable switch grounds of the appellant, due regard being had for the safety of employees, and that appellant’s demurrer to the evidence should have been sustained on this account.
In answer to this contention of the appellant, the respondent argues that in determining this question, the law excludes the through business of the road, such as the mere passing of trains, the storing of cars not used in connection with the station, extra switching, taking train orders, and so forth, occasioned thereby. To maintain the proposition, the appellant asks this court to make the following finding: “That the undisputed evidence showed that the horse came upon the railroad track of the appellant at a point where the cattle-guard and fences could not have been maintained with safety to the trainmen in the discharge оf their duties,” and that appellant’s demurrer should have been sustained by the trial court. In support of this position, several cases are cited.
As we have stated, the undisputed evidence was that the horse went upon appellant’s railroad track and was killed at a point some five hundred feet northeast of the head-block or hеad of the switch, and seventy-five or one hundred feet inside of the cattle-guard, and that such point was some one thousand feet northeast of the depot. Should the court have declared as a matter of
In order to bring into relief the questions here presented, we pass in review some cases from the appellate courts where the position of the appellant herein has been expressly negatived, and in which, under facts nearly parallel to those in this case, it has been held that it was not a question of law for thе court but a question of fact for the jury. In the case of Acord v. Railroad,
In the case of Brandenburg v. Railroad,
In the case of Downey v. Railroad,
The general proposition seems tо be well established that, what are necessary station grounds where stock is not killed immediately adjacent to a station,
II. The appellant further assigns as error the giving of instructions for respondent over its objections, of which instruction numbered three will serve as an illustration: “You are instructed that in determining the amount of its track and the right of way which the defendаnt railroad had a right to leave unfenced on account of its business done at and in connection with the station at Goodman, you will take into consideration only the amount of business transacted with the public at said station and not its otm lousiness in u^ing the suñtch in question for the passing of through trains or storing of cars not used at said station, due regard being hаd to the safety of the railroad employees in the use and operation of said switch.”
The negative clause of this instruction — the part in italics — is the part to which the appellant takes special exception. Speaking on this particular question as to whether the switch limits should be sufficient for the passing of through trains or the storаge of cars not used at the station and the business transacted at the station, attention is directed to the case of Vanderworker v. Railroad,
In the case of Russell v. Railroad, 26 Mo. App. l. c. 374, this statement is made: “As to the switch on the south side, there cannot be .any pretense that it was used for any other purpose than for the passing of trains, and as a place for empty сars to stand, for the lack of such facilities on the Kansas City side of the river.” And in the same opinion the court say: “From which it is manifest that such switches must be at or near the depot, and the space to be kept open shall be no more than is necessary for the transaction of business at that depot.”
In the case of Chouteau v. Railroad,
In the case of Smith v. Railroad, 111 Mo. App. l. c. 420,
In the latest case on this subject, Bridges v. Railroad,
The general rule of the cases may be summarily stated as follows: The exception to the statute requiring railroad companies to fence their tracks is one of necessity and has been еngrafted thereon by courts ,and extends only to such switch grounds at a station which are needed for the public’s and the company’s business connected with the station and not belonging to the general operation of the road, such as the passing of trains, storing and billing out of cars, turning in and taking out of way bills of through cars, inspecting through trains, giving and taking running orders on through trains and the like.
III. Another error assigned is that the court should not have allowed the non-expert witnesses of the plaintiff to testify as to the amount of space required for switching cars to the side track. As to the class of testimony which is sought to be reached by this objection, we quote from the testimony of witness Roberts :
“Q. How close do yоu say the cattle-guard could be placed there so as not to interfere with their operating the switch as you have observed? A. Well, I would judge they could have one within one hundred feet of there and be in safety from what I have seen them work there at those switch-stands and points.
“Q. Did they have to cross the cattle-guard?
This evidence and evidence of this class introduced by the plaintiff is not mere opinion, but matters and facts within the observation of the witness. Where questions, even if objectionable in form, are understood and answered by the witness as calling for matters and facts within his observation, they do not elicit mere opinions independent of observed facts. If all the facts upon which the opinion or judgment of' the witness are based are within the knowledge of the witness, and such facts are given to the jury, such explanations are not properly expert testimony and their admission or rejection is harmless. [17 Cyc., 60; Owen v. Railroad,
IV. It is assigned as error that the trial court excluded the questions asked by defendant of its expert witnesses Downen and Busch. As an example of the evidence proposed to be introduced, the following question was asked the witness Busch:
“Q. Taking your experience into consideration, the amount of business as shown by the witnesses as usually done at stations like Goodman, Missouri, how far is it usual and customary to place the cattle-guard from the end of the switch in order to do the switching with apparent safety to the employees?” An answer to this question was not permitted by the court. The following question was asked and allowed by the court to be answered:
“Q. Now taking into consideration your experience in railroad affairs and taking into consideration
We see no grounds for complaint by reason of the denial of an answer to the first question as it is substantially covered by the answer the court allowed to be given to the second one.
But in any event, the exclusion of expert testimony in this case would have been entirely proper on the part of the court. The general rule may be thus stated: If the jury, althоugh presumably devoid at the beginning of the trial of experience concerning a subject-matter, can be so informed during its progress as to reach an accurate conclusion, the subject is not one for inference, conclusion or judgment, and the evidence may be excluded in the discretion of the court. [17 Cyc., 45.] And it has been exрressly and specifically decided in cases involving the questions at issue as to the extent of switch limits and the duty of railroads to fence that expert testimony is not allowed. [Railroad v. Modesitt,
Y. Another assignment is that the court erred in giving instructions numbered two, three and four and that the same were in irreconcilable conflict with those numbered six, seven and eight given for the defendant. Upon a сomparison of all the instructions given in the case, their harmony is apparent. They permitted the jury to consider all the business done at the station of Goodman which was connected with that station, they only excluded the business not connected with the station and they follow approved forms and are within the rules hereinbefore stated.
YI. In this сase, it was justly assumed that the horse having been injured at a place where the defendant company was required to fence, the place of killing, in the absence of evidence to the contrary, is presumed to have been the place of entering. [Ellis v. Railroad, supra; Pearson v. Railroad,
We find no substantial error in this record, and the judgment, being for the right party, is affirmed.