111 Mo. App. 410 | Mo. Ct. App. | 1905
A mule belonging to tbe plaintiff was killed by a collision with one of defendant’s locomotives. Tbis action is to recover for tbe loss. Tbe complaint contains three paragraphs, tbe first one founding tbe cause of action on tbe double damage statute (sec. 1105); tbe second on tbe single damage statute (sec. 2867), and tbe third on tbe negligence of the defendant’s engineer. A verdict was given for tbe value of tbe mule on tbe second paragraph, and in tbe discussion of tbe points raised on the appeal we will treat them with reference to that statement of tbe cause of action. At tbe place of tbe accident there was a private switch put in by Scott & Company, to be used in connection with a saw mill they operated there. Tbe mill itself stood partly on tbe right of way. The switch was between two and three hundred feet long, close to tbe main line of defendant’s railroad and entirely on tbe right of way. A private crossing, used mostly by Scott & Company in connection with their milling business, but occasionally by others, crossed tbe main line a hundred feet or more from tbe north end' of tbe switch. About twelve or thirteen carloads of freight, mostly composed of hickory bolts and other structural timbers, are loaded at tbe switch every month. Tbe country about is timber land
In the Morris case the defendant company asked an instruction that it was not liable if the animal killed got on the track at a portion of the railroad included in the switch limits of a station or depot. It was held that this instruction was properly refused, and in making the ruling the court said:
“There is no reason why defendant should not fence its road along each side of the road where it has a switch, as well as at other places. Where a switch extends along the main line for a considerable distance through an 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 •the case of Lloyd v. Railroad,before referred to, 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 station.”
The point in judgment in that case was that a railroad company is bound to fence such portions of its track in the vicinity of stations as can be inclosed without detriment to the public or imperilling its employees, and that how much space needs to be left open is a ques
Tbe question of tbe exemption of railroad companies, on tbe score of necessity, from the statutory duty to fence, has come up for consideration in many cases for killing stock, and in every one tbe ruling was that tbe company was liable for single damages at least, if tbe animal entered tbe track where it was unfenced, unless tbe point of entry was a public highway or street or where tbe track ought to be left open for tbe safe and convenient transaction of business at a station. Bean v. Railroad, 20 Mo. App. 641; Robinson v. Id., 21 Mo. App. 141; Russell v. Id., 26 Mo. App. 368, s. c. 83 Mo. 587; Hohnson v. Id., 27 Mo. App. 379; Chouteau v. Id., 28 Mo. App. 556; Pearson v. Id., 33 Mo. App. 543; Jennings v. Id., 37 Mo. App. 651; Brandenburg v. Id., 44 Mo. App. 224; Straub v. Eddy, 47 Mo. App. 189; Swearingen v. Railroad, 64 Mo. 33; Robinson v. Id., 64 Mo. 412; Railway v. Clark, 121 Mo. 169, 183, 25 S. W. 192, 906; Cox v. Railroad, 128 Mo. 362, 31 S. W. 3. In those cases it was taken for granted that the company’s omission to fence the track could be justified only in the instances stated. But as in the cases resembling this one, the animals entered at or near stations, the essential question involved was whether it was necessary to leave the track unfenced at the point of entry, for the convenience of the public and the safety of train operatives in connection with the business of the station. We are pointed to two decisions of this court supposed to war
“The decision in Morris v. Railroad, 58 Mo. 78, was rendered nearly a quarter of a century ago, and no doubt has ever been entertained prior to this case as to its true meaning. It has been cited and approved by this court as late as the October term, 1893, of this court, in Railroad v. Clark, 121 Mo. 169, and followed in Cox v. Railroad, 128 Mo. 362. The St. Louis Court of Appeals followed and approved it in Robinson v. Railroad, 21 Mo. App. 141, and in Forester v. Railroad, 26 Mo. App. 123. The Kansas City Court of Appeals in Russell v. Railroad, 26 Mo. App. 368, relied upon it as the true construction of section 2611, Revised Statutes 1889, and expressed no doubt of the meaning to be given the language of Judge Varies. The same court again quotes it as controlling authority in Johnson v. Railroad, 27 Mo. App. 279.”
Those remarks convey the impression that the Supreme Court approved the opinion in the Morris case in its full scope and accepted as sound the proposition that railroad companies are bound to fence everywhere except in towns, at highway crossings and about “such grounds as are necessary to remain open for the use of the public and the necessary transaction of business” at a station or depot. In the Russell case (26 Mo. App. 368, 375) the Kansas City Court of Appeals quoted the
“From which it is manifest 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 farther, 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 Harlem denot was concerned, there is nothing to show why such switches could not have been built on the two hundred yards’ space next to the depot. And most certainly there was not the shadow of a pretense that such business required the extension of these switches over the distance of half a mile for the unloading of freights, which was so seldom that defendant’s own agents were most indefinite as to when, or how often, they had seen any freight unloaded on this switch. With just as much propriety, in law, might it be said that if these cars had occasionally unloaded freight from Kansas City at these switches, because of the crowded or unfavorable condition and location of the city depot, the switches would have so pertained to its business as to exempt the roads from their obligation to fence; or, that if this switch had been a mile or more long, it would have been within the rule of Switch limits for its entire length, regardless of the necessity arising from an accomodation of the business done at the station.”
Now it is noteworthy that in the Shafer case the Supreme Court approved the decision of the Kansas City Court of Appeals in the Bussell case, which does not differ materially in its facts from the case at bar. In Taylor v. Railroad, 28 Mo. App. 536, it was explicitly, decided that switches and side tracks used to stand cars on,
In many cases it is held to be a question for the jury whether an unfenced switch is necessary to be left open in connection with the business of a railroad station; but the clear implication from the opinions is that tracks are imperatively required to be fenced wherever a road runs through uninclosed lands, and that loading or passing switches, located away from stations must be inclosed as well as other parts of the road.
Scrutinizing all the facts of the present case we think, as did the Supreme Court in the Russell case, that the contention of the defendant that its track could not be fenced at the point where the animal entered was the merest pretense. There was no station or agent or even a platform at the place; no passengers were received or discharged, freight trains only stopped occasionally to set out or take up a car, not a car of' freight a day was shipped out, the mill owners loaded their stuff directly from the mill, which projected on the right of way; so a fence would not have interfered with them, as Scott himself testified; and if the other residents of the vicinity wanted to use the switch, a gate could have been put in for their benefit. The nearest highway crossing - was quite a distance from the apex of the switch and the latter could have been enclosed, therefore, without putting in a cattle guard at the crossing. The siding was of ample length to hold the few cars set out there to be loaded and unloaded.