39 Minn. 485 | Minn. | 1888
We see no error in the charge of the court to the jury of which the appellant should complain; nor can it be said that the verdict of the jury was not fully justified by the evidence. The statute (Gen. St. 1878, c. 34, §§ 54, 55) which compels railway corporations to fence their right of way is so familiar to the profession, and has been so often quoted in the decisions of this court in stock-killing cases, that a repetition of the phraseology seems unnecessary; and while this statute is imperative, and excludes no part of the line in terms, it is held to be subject to an implied exception as to places, such as depot and station grounds, used for the convenience of passengers and the necessary handling of freight, which may be kept open and unfenced. The convenience, the necessities of the public, is the test; and this convenience and necessity is the limit of the exception to the statutory rule imposing upon railroads the duty of fencing upon each side of their tracks. Greeley v. St. Paul, M. & M. Ry. Co., 33 Minn. 136, (22 N. W. Rep. 179;) Kobe v. Northern Pacific R. Co., 36 Minn. 518, (32 N. W. Rep. 783.) In neither of these eases was there any attempt to define what may or should constitute depot or station grounds, except in a general manner; while in Hooper v. Chicago, St. Paul, M. & O. Ry. Co., 37 Minn. 52, (33 N. W. Rep. 314,) the court held that ground customarily and necessarily used by a railroad company for the storage of wood hauled there for shipment, and upon which was an elevator used for the storage and shipment of grain, (the evidence satisfactorily showing that the nature and extent of the business transacted upon the ground required that it should remain unfenced,) must be held to come within the exception. In Fowler v. Farmers' Loan & Trust Co., 21 Wis. 77, it was stated “that depot or station-grounds are a place where passengers get on and off the ears, and where goods are loaded and unloaded, and all grounds necessary or convenient and actually used for these purposes.”
In the case at bar there is no dispute over the real character of the grounds upon which plaintiff’s mules were killed. The side track was about 1,600 feet long, upon the southerly side of the main line.
The other point made by the appellant has been disposed of, as was well stated by the trial court in its “memorandum,” in Dorr v. Mickley, 16 Minn. 8, (20;) Colter v. Mann, 18 Minn. 79, (96;) Lewis v. St. Paul & Sioux City R. Co., 20 Minn. 234, (260.)
Order affirmed.