26 Mo. App. 368 | Mo. Ct. App. | 1887
This case has been in the supreme ■court, and is reported in 83 Mo. 507. It is for the recovery of damages for the killing of plaintiff’s horse by defendant’s cars, near Harlem, in Clay county. The supreme court reversed the case and remanded it. On its
Harlem is a town almost without streets, houses, business or people. There' have been people, houses, •and some municipal pretensions about it; but, owing to the natural, perverse inclination of the waters of the Missouri river occupying, without leave and little warning, its thoroughfares as a current, and under the absorbing commercial and trade influences of Kansas City, on the opposite bank of the river, there has, for years, “been little of it to call a town.
The railroad station, or depot, is located but a short -distance from the base of the incline where the railroad track begins the ascent of the.trestle works leading on to the bridge • spanning the river. From this depot, going east, the Hannibal & St. Joseph Railroad and the Wabash & Pacific Railroad, run parallel, with only sufficient space between them to admit trains ■ to pass with safety. The Hannibal road is on the north and the Wabash on the south side. At the distance of about two hundred yards east of the depot both of these roads have •switches beginning and running parallel with the main tracks. That on the north side extends east from its initial point about six hundred yards, and that on the south •side about four hundred yards, where they connect with their respective main tracks. There do not appear to be •any streets at these points. A county road, running from the river north, runs for some distance alongside of the right of way, on the south side of the tracks, and crosses the tracks, at a point perhaps just east of the terminus of the side switch on the south side, and between that and the point where the switch on the Hannibal side connects with the main track. The roads at these points, the entire length of the side track, run .through uninclosed lands. There are no cattle guards
■ The plaintiff’s evidence, without any material contradiction, tended to show that his horse entered upon the defendant’s railroad track at a point west of, and not very far from, the public road crossing; where he was struck by an engine, and pushed some distance-before he was thrown from the track. The defendant’s-evidence tended to show that the horse was struck at a point somewhat further towards the depot; but, as the-defendant’s own evidence tended to show that the point of collision was nearer the east end of the switch than the west, the discrepancy between these witnesses, in this matter, maybe considered as decided in defendant'» favor, for the purposes of this decision.
Defendant’s evidence was directed mainly to developing the fact that the injury occurred within the switch limits, and the further fact that these switches were used for-loading and unloading freights. As to the switch on the-south side, there can not be any pretense that it was used for any other purpose than for the passing of trains,, and as a place for empty cars to stand, for the lack of such facilities on the Kansas City side of the river. The only loading done there was of sand for bedding-live stock in the stock cars. This had no connection with the business of the Harlem station.
The very most that can be conceded to the defendant, in respect of the switch on its side of the track, is,, that, occasionally, freight had been unloaded there, at some time in the past, into wagons driven alongside of the car. No unprejudiced mind, however, can escape the conclusion that the real purpose and use of this long switch was for standing empty cars on, for the Kansas City traffic, and for the passage of trains coming-from, and going to, Kansas City. That a switch six hundred yards long was used as an appurtenant to and for the necessary business of Harlem station is too preposterous for consideration.
The supreme court has so construed this section, as in the case of Morris v. Railroad (58 Mo. 78), as to exempt the railroads from the obligation to so fence, “where stock is killed on the grounds of a railroad at a depot, and it is not necessary, for the transaction of business, that the space shall be kept open therefor.” “But, where stock is killed on a railroad switch, ata point where it is necessary to keep the road open in order to transact business, the company will be liable without proof of negligence.” The court further say: “Where the switch extends along the main track for a considerable distance through añ open prairie, it is just as necessary and practicable to have the road fenced as upon any other part of the road, and we are not inclined to extend the rule laid down in Lloyd v. Railroad, further than the facts of that case will justify, and that is, that the company is not required to fence such grounds as are necessary to remain open for the use of the public and the necessary transaction of business at the depot or sta-i ion. ’ ’ Erom which it ismanif est 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.
The switches in the case at bar were not at the depot. They began two hundred yards from it, and extended a quarter of a mile further, through uninclosed lands. And as such, they come within the very language of the supreme court, that it is the duty of the roads to fence them. Even had there been any business necessity for switches, so far as the trade and traffic of Har
On this state of the evidence the court declared the law as follows:
“If the court, sitting as a jury, find, from the'evidence, that the plaintiff was the owner of the bay máre mentioned in his petition ; that, on or about the seventh day of August, 1S80, said mare was injured by the cars, locomotives, or other carriages used and operated on defendant’s said railroad by the Chicago, Rock Island and Pacific Railway Company, under authority of defendant and under lease of said railroad track by said Chicago, Rock Island and Pacific Railway Company from defendant; that said injury occurred in the county of Clay, and state of Missouri; that, at the place where said animal got upon defendant’s said track, and was so injured, said railroad track passed along, or through unin-dosed lands ; that, at said place, said railroad track was not fenced, and said places were not within the limits of any incorporated town or city, or of any station of defendant, and were. not the crossing of any public highway,*377 then, the court, sitting as a jury, will find the issues for the plaintiff. And, if the court further finds that said animal was so injured as tobe worthless, then, the court, sitting as a jury, will assess the actual value of said animal under the evidence, and on such finding, plaintiff will be entitled to judgment for double the amount of the actual damage so sustained by plaintiff.”
This covered the whole issue, and was supported by the evidence.
The first instruction asked by the defendant was properly refused, because it wholly ignored the issue as to the necessity of the switch, at the point where the injury occurred, for the transaction of business at that station. So of the second instruction.
The other instruction refused by the court was also properly rejected, for the reason that the obligation of the defendant to fence on the south side of the Wabash track was' expressly decided by the supreme court in Hozelle v. Railroad (79 Mo. 359).
On the record, the verdict and judgment were for the right party; and, therefore, the judgment is affirmed.