131 Mo. App. 464 | Mo. Ct. App. | 1908
On the night of September 15, 1906, two of plaintiff’s mares and the colt of one of them went upon defendant’s railroad track at DeLisle, in Pemiscot county, and were run upon by one of defendant’s locomotives and a train. One mare and the colt were killed and the other mare badly injured, hence this action, brought on the double damage act. By the verdict, plaintiff’s damages were assessed at $210, which the court, on plaintiff’s motion, doubled and rendered judgment for $420. Defendant appealed.
The court gave the following instruction for plaintiff:
“2. The court instructs the jury that if they believe and find from the evidence that the point on de*466 fendant’s road where plaintiff’s animals entered and were killed and injured was not a regular stopping place for taking on or discharging either freight or passengers, and if they find from the evidence that defendant maintained no depot, or agent, at said point, then said place was not a station, and that if they further find that defendant could have erected and maintained lawful fences along the sides of its said road at said point, together with cattle-guards sufficient to keep stock from entering upon the road, without inconveniencing or endangering defendant’s employees in moving cars on said switch, then your finding should be for the plaintiff.”
The following instruction, asked by defendant, was refused:
“2. The court instructs you that under the evidence DeLisJe is a station on defendant’s railroad, and under the law it should leave unfenced such portion of its track and spurs and switches thereat as are necessary for the transaction of its business at the said station, or for the convenience of the public in the transaction of its business there, or for the safety of the men engaged in operating trains; and if you find that plaintiff’s animals entered on defendant’s right of way at the said station, and within such parts thereof as were necessary for defendant to leave unfenced, for the purposes aforesaid, and it did leave the same unfenced, and after so entering they escaped by fright, or otherwise, over a trestle used by defendant for the purpose of a trestle and cattle guard, and that said trestle was ordinarily sufficient to prevent horses, cattle, mules and. other animals from going over the same, and after crossing said trestle they came upon a part of defendant’s road, where it passed through inclosed or uninclosed lands, and not fenced, and not within the limits of any city, town or village, or switch limits, and not at a public crossing, and were, after coming on the railroad of defendant at*467 that point, struck by defendant’s train, and killed or injured, then and in that case you will find the issues for the defendant.”
The giving of the one instruction and the refusal of the other are the only errors assigned. The propriety of this action of the court must be determined by ascertaining whether or not DeLisle is a station on defendant’s railroad. The evidence shows there is no station house, no platform and no station agent at that point; it further shows that it is not a regular stopping place for either freight or passenger trains; no tickets are sold there to any point on defendant’s road nor at any station on the road to that point. It is noted on defendant’s time table as a flag station and its passenger trains, when flagged, stop to receive passengers, and also stop to discharge passengers whose destination is DeLisle. The railroad runs about north and south; on the east side of the railroad is a large sawmill. A short distance north of the mill is an eight foot wagon road, running east and west and crossing the railroad. This road leads to the Portageville and Caruthersville public road, about a quarter of a mile west of the railroad. This eight foot road is mostly used to haul logs to the mill. The people living ease of the railroad also use it to reach DeLisle and the Portageville and Caruthersville road. Several hundred feet south of the mill is a cattle-guard, and seven or eight hundred feet north of the mill is a trestle, fourteen and one-half feet long, nine feet wide and from three to four feet deep. This trestle also serves as a cattle-guard. The space between the two cattle-guards is open. On the east side of the road this space is occupied by a side track or switch and a tram way, the mill and the mill yard. The open space west of the road is also used as a mill yard, principally for the storage of saw logs. A switch or spur track runs from the north up near the mill and is used to set cars on to
By section 1105, Mo. Ann. St., 1906, on which the action is bottomed, a railroad company is required to fence its tracks everywhere outside of towns and cities except at public road crossings and depot or switch grounds. [Railway v. Clark, 121 Mo. 169, 25 S. W. 192, 906: Hamilton v. Railway Co., 87 Mo. 85; Boyle v.
The evidence tends to show that very little freight, if any, is shipped from DeLisle, except the lumber shipped by the mill company, and that precious little freight is received there by persons other than the mill people and employees of defendant company. Still the case is not on all-fours with the case of Duncan v. Railroad, 111 Mo. App. 193, 85 S. W. 90, where a switch was maintained for the sole accommodation of a granite quarry, small packages of freight being occasionally thrown off for the accommodation of people living in the neighborhood. If defendant company, as we think the evidence tends to show, kept the grounds open and maintained its switch for the purpose of accommodating any shipper who might offer freight for shipment and stopped, trains whenever necessary to receive or discharge passengers, and if the open grounds could not be fenced without endangering the life or. limb of the employees of the company in handling and switching trains within the open grounds, then we think the railroad company was not bound to fence the grounds. These are questions which should be submitted to the jury under appropriate instructions. That this may be done, the judgment is reversed and the cause remanded.
