125 Mo. App. 15 | Mo. Ct. App. | 1907
Plaintiff sued for double damages for a steer killed by a locomotive. Some of the evidence indicates that the animal was struck by the locomotive on the crossing where a highway intersected the railroad and tossed on the right of way beyond the cattle-guard, which was defective. In view of these two possibilities the court rightly refused to direct a verdict for defendant. It was not entitled to this direction even
“Q. Explain how the fences were all situated on the south side of that road? A. It was open about sixty yards south of the crossing, the north was an open road.
“Q. Open lane running north of that? Open lane running north and south of the road; about sixty yards south of the road.
“Q. Was there any public road, public highway
“Q. Explain what was the condition of the fence there; what you mean by a public highway? A. There was an open crossing there; there was nothing to keep people from going over the railroad at that point.
“Q. Was that open on both sides of the railroad? A. Only sixty yards south of the track, but the north end was all open.
“Q. Now what, if anything, closed it on the south side of the track? A. A gate wired and poled up.
“Q. Had you known that for two years prior to that time? A. Yes, sir.
“Q. During any of that time had this been an open highway that you know of? A. It had been used some in passing there.
“Q. In what manner had it been used? A. As a neighborhood road.”
The crossing in controversy was shown to have been a public one within the meaning of the law that railway companies are not required to fence at public crossings, . though in point of fact, it may have been opened by the adjacent land owners for their convenience. The essential facts were that every one who wished had the right to use it and did use it. It would be unreasonable to say the railway company was bound to close up such a highway, or, indeed, would be permitted to close it. This case comes within the authority of several decisions in this State. [Walton v. Railroad, 67 Mo. 56; Brown v. Railroad, 20 Mo. App. 427; Jackson v. Railroad, 66 Mo. App. 506; Russell v. Railroad, 70 Mo. App. 88. See, too, 3 Elliott, Railroads, sec. 1193; 1 Rorer, Railroads, p. 622.]
For error in refusing defendant’s request to instruct the jury that defendant was not required to fence the crossing, the judgment is reversed and the cause remanded.