161 Mo. App. 1 | Mo. Ct. App. | 1912
Action for double damages for injury to a horse struck by a train on defendant’s road. The action is based on defendant’s failure to fence its track. Verdict for plaintiff for $75' which was doubled by the court and judgment entered for $150' and defendant has appealed.
The accident occurred at what defendant designated as the station of Sawyer in Butler county. The defendant admits the injury but contends^ that it is not liable under the double damage statute 'because under the facts it was not required to fence its road at the place of the accident. The evidence shows that the animal- came upon the-track within the switch limits at Sawyer and about midway between the two ends of the switch. The track at this place runs from, northeast to southwest but for convenience we shall designate it as running north and south. Just south of the south end of the switch a public road crosses the railroad track and there is a cattle-guard on the south side of this crossing and the railroad is fenced south of that point. The switch extends from the public road north to a trestle which is used in lieu of a cattle-guard and the railroad is fenced north of that point. The length of the switch is not definitely fixed. The plaintiff testified that it was a 100 yards or more long, also that it would hold about twelve cars. From this-it was probably 300' to 400 feet long. The switch was on the west side of the main track and west of the switch track Mr. Sawyer had a store, a small sawmill and a small factory where grain doors were made. Ties and logs were piled along near the track on this-side also to be loaded on cars. Back of the buildings on the west side was Mr. Sawyer’s dwelling. On the east side of the track were six small dwellings but part of them were vacant. There had been a postoffice at the place but it was removed near the time of the accident, but whether before or after it, is not clear. There was no depot building and no agent maintained
The facts above narrated were all shown by plaintiff’s witnesses and were not contradicted so they may be said to be conceded. Do they show that defendant was not required to fence at the point of the injury? A railroad in the transaction of its business as common carrier must of necessity have stations, depots, depot grounds, and switches, and, as far as is necessary to conveniently transact its business with the public, must be permitted to leave its tracks unfenced at such points. The fact that a railroad may not have a depot building or maintain an agent at a point where it receives and discharges passengers and freight does not necessarily deprive it of the right to leave a convenient portion of its track unfenced where it is necessary for the public to have easy access to its tracks in order to
The test of liability or non-liability for failure to fence is the. necessity for an open track in order to accomodate the public and secure the safety of the employees of the railroad. The amount of business done at a given point is not controlling, but if there is a constant demand for access to the track by the public, or if the company may reasonably expect that the public may at any time need access to its track in order to take passage upon its trains or disembark therefrom or place freight there for shipment or to .receive freight shipped to that point, then the carrier not only has” the right but it is its duty to leave unfenced whatever length of track shall be reasonably necessary for the accommodation of the public and to insure the safety of its employees in switching and in handling the business at that point. The extent of the length of track that may be left unfenced will depend upon the amount and nature of the business to be transacted there with the public. [Ellis v. Railroad, 89 Mo. App. 241; Smith v. Railroad, 111 Mo. App. 410, 85 S. W. 972; Acord v. Railroad, 113 Mo. App. 84, 103, 87 S. W. 537; Eaton v. Railroad, 119 Mo. App. 640, 95 S. W. 271.]
In determining the length of track that may be left unfenced, the necessities of the business of the carrier with the public alone and the safety of its employees in transacting that business should be considered. The carrier cannot leave a track unfenced for the accommodation of one man or a few men or any number of men less than the general public; neither can it do it for the accommodation of its own business which is disconnected with its business with the public at the place in question. [Green v. Railroad, 142 Mo. App. 67, 125 S. W. 865.]