99 Mo. App. 271 | Mo. Ct. App. | 1903
This is a suit commenced before a justice of the peace in Scott county, to recover damages for the value of a bull killed by defendant in the operation of its railroad. On appeal to the circuit court a trial was had before a jury, which rendered a verdict for plaintiff, and defendant has. appealed to this court. The statement set forth that on the 16th of June, 1900, defendant was operating a railroad in Kelso township, Scott county; that on that day a Jersey bull owned by plaintiff, valued at $65, was run over and killed by the engine and cars of defendant; that the place at which the bull went upon the railroad and was killed was not at a point where the railroad was inclosed by a lawful fence, nor at the crossing of any public highway, and that the animal went upon the railroad and was killed at a place where the defendant might have lawfully erected and maintained fences on the sides of its railroad sufficient to prevent animals from getting on the road, but had failed to erect and maintain such fences, whereby the plaintiff had sustained the damages. The evidence in the case was brief, substantially undisputed, and established that G-raysboro, an unincorporated town at the terminus of
In the construction of the statutes relating to fencing by railroads, the courts have excepted by necessary intendment from their application such grounds as are required to remain open for the use of the public and
Under this section a railroad can not arbitrarily determine for itself the question whether a space uninclosed claimed for station use, depot purposes and switch limits, was necessary for the convenient and safe transaction of its business and for the accommodation of the public, but where evidence has been introduced tending to show that the railroad might have fenced its road where the plaintiff’s animal' strayed upon its railway track without causing inconvenience to the railway or to those having business to transact with it, or to the public at such point, the jury should determine the question of the necessity of the land nninclosed for such uses. Straub v. Eddy, 47 Mo. App. 189. But in the case under consideration there is no such evidence, and while it is the province of the jury to determine all questions of fact, it is likewise the province of the court to determine all questions of law, especially whether there is any evidence entitling the submission of issues of fact to the jury. O’Malley v. Railroad, 113 Mo. 319 ; Boland v. Railroad, 36 Mo. 484. The plaintiff submitted the testimony of but two witnesses, the first of whom, a son, stated he resided and did business at Grays Point at the time of the killing of the bull, and that if the railroad yards were fenced in, neither he nor his neighbors could get out without climbing a barb-wire fence, and the people living outside would have to climb two barbed-wire fences to get to his place of business, and that the business of the town could not be transacted if the railroad was fenced, without new roads; that there were about fifty-five families in the town of Graysboro, living on both sides of the railroad, and that he did not know whether it was practicable to fence up the yards and switches. The remaining witness offered by plaintiff, stated that the