33 Mo. App. 543 | Mo. Ct. App. | 1889
Plaintiff'brought this action under section 809, Revised Statutes, charging that his horse was killed by defendant’s cars at a point, in Sullivan county, where the road was not fenced and where the law required it should have been fenced. The.re was a verdict and judgment for plaintiff and defendant appeals.
The evidence, as disclosed by plaintiff’s abstract, shows that the horse was found with its fore-leg broken and with no other mark or wound save a wound on one hip. The place where found is near the town of Boynton, but whether in or outside the town limits .does not appear. There is a depot and station ground in the town, a lengthy switch or side-track running on the east side of the depot building and connecting, at either end, with the main track, a considerable distance north and south of the depot. At the head of the switch at the north end, there is a highway crossing, and one hundred and twenty feet north is a cattle-guard, properly connected by fence which encloses defendant’s track thence on north. North of the cattle-guard, a few feet inside the fencing so enclosing defendant’s track, the horse was found as stated. Plaintiff’s contention is, as we gather from the record, that the horse entered on defendant’s track on the one hundred and twenty feet open space south of the cattle-guard and north of the head of the switch. Defendant’s position is, that there is no evidence, that the animal entered on this space, but that if it did, such space was a part of its switch limits and depot grounds and necessarily left unfenced for the convenience of itself and the public in transacting the business incident to its calling.
I. It has been frequently determined in this state that a railroad company is not liable under section 809, Revised Statutes, unless the stock got upon the track at
II. Th e evidence discloses that the unfenced space between the highway and the cattle-guard was used by the defendant company for switching purposes in connection with the station and depot. The evidence showed in addition, and the matter was not disputed, that if the cattle-guard was placed any nearer the head of the switch than was this one, it would endanger the lives of defendant’s employes in the switching necessary to the transaction of station or depot business with the general public. Under such state of case plaintiff ought not to recover. If a railway company wilfully places that in its track which will unduly hazard the life and limb of its employe in the performance of the service required of him, it is liable to such servant for an injury thereby occasioned. Lewis v. Railroad, 59 Mo. 495. This being true, it is altogether out of the question to hold such company liable in another direction for not doing so. The law should be administered as nearly consistently as may be, and in no case should a party
The judgment is reversed.