Dorsey v. Chicago, Burlington & Quincy Railroad Company

• Decision Date: 03 June 1913
• Citation: 157 S.W. 1065,175 Mo.App. 150
• Parties: MYLES DORSEY, Respondent, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, Appellant
• Court: Missouri Court of Appeals

157 S.W. 1065

175 Mo.App. 150

MYLES DORSEY, Respondent, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

June 3, 1913

Appeal from St. Charles Circuit Court.--Hon. James D. Barnett Judge.

Judgment affirmed.

Theodore C. Bruere for respondent.

As to whether it was necessary or desirable for the protection of the employees of defendant or for the convenient transaction of the business of appellant for the appellant to maintain open and without a cattleguard the space between the west end or point of the switch and the place where the cattleguard had been taken out was a question for the jury. Brandenburg v. Railroad, 44 Mo.App. 223; Acord v. Railroad, 113 Mo.App. 84; Duncan v Railroad, 111 Mo.App. 193; Johnson v. Railroad, 27 Mo.App. 379; Russell v. Railroad, 26 Mo.App. 368.

Brice Edwards and Palmer Trimble for appellant.

(1) Unless the damages complained of are properly attributable to the wrongful act charged, there can be no recovery; or, in other words, the wrongful act complained of must be the proximate cause of the injury. Sira v. Railroad, 115 Mo. 127; Henry v. Railroad, 76 Mo. 288; Logan v Railroad, 70 S.W. 734; Paquin v. Railroad (Minn.), 108 N.W. 882. (2) It is the settled law of this State, that it is the place where the animal got on the track, and not where it was in fact killed, that fixes the liability of the railroad company. Cecil v. Railroad, 47 Mo. 246; Nance v. Railroad, 79 Mo. 197; Moore v. Railroad, 81 Mo. 502; Ehert v. Railroad, 20 Mo.App. 251; Accord v. Railroad, 113 Mo.App. 84; Corcoran v. Railroad, 138 Mo.App. 408; Edie & Son v. Railroad, 133 Mo.App. 9; Hurd v. Chappell, 91 Mo.App. 317. (3) A railroad company is not required to fence such ground as is necessary to remain open for the use of the public and the necessary transaction of the business at the depot or station. Nor where such fencing would endanger the lives of its employees in the performance of their duties. Pearson v. Railroad, 33 Mo.App. 543. (4) If the fencing of the railway track, or placing cattle guards at the point where the animal came upon the track, or was killed, would interfere with the transaction of the business of the company, or endanger the lives and safety of its employees and officers in the operation of its trains, then the company would not be required to fence its tracks or place cattle guards at such place. And no liability will attach to a railroad company for failure to put a cattle guard at a place where, to do so, would endanger the lives or limbs of its employees. Redmond v. Railroad, 104 Mo.App. 651; Corcoran v. Railroad, Co., 138 Mo.App. 408; Gilpin v. Railroad, 197 Mo. 319; Edie & Son v. Railroad, 133 Mo.App. 9. (5) Where the animal came upon the track within switch limits, the fact that they were killed beyond such limits, and where the defendant is required to fence, would not render the company liable, unless the petition alleged, and the evidence proved, that the company was negligent in not using reasonable diligence to prevent the injury after it discovered the danger. Redmond v. Railroad, 104 Mo.App. 651; Lloyd v. Railroad, 49 Mo. 199; Edwards v. Railroad, 66 Mo. 567; Morris v. Railroad, 58 Mo. 78; Grant v. Railroad, 56 Mo.App. 65; Hurd v. Chappell, 91 Mo.App. 317; Bumpas v. Railroad, 103 Mo.App. 202; Kirkpatrick v. Railroad, 120 Mo.App. 416; Snider v. Railroad, 73 Mo. 465.

NORTONI, J. Reynolds, P. J., and Allen, J., concur.

OPINION

NORTONI, J.

--This is a suit for damages accrued to plaintiff through the negligence of defendant in omitting to construct a cattle guard and fences at a point where its railroad passes uninclosed lands. Plaintiff recovered, and defendant prosecutes the appeal.

The statute (Sec. 3145, R. S. 1909) imposes the obligation on railroad companies to construct and maintain lawful fences along the sides of its railroad where it passes through, along or adjoining inclosed or uninclosed lands, and likewise to construct cattle guards and connect wing fences therewith at certain places contemplated. In event the railroad fails to observe the duty thus enjoined, the owner of stock killed on the road through collision with its trains is given a right of action in double the amount of damages sustained for his loss, provided the loss occurs as a result of the failure to construct and maintain such fences or cattle guards.

It appears plaintiff's colt was run upon and killed by defendant's train, some four or five feet east of the cattle guard, at the station of Orchard Farm. Orchard Farm is a small station on defendant's railroad where considerable business is transacted by it with the public, but the town is unincorporated, and there are no platted or dedicated streets crossing the railroad there. Indeed, the defendant's station grounds and the right of way are immediately adjacent to the south side of the town. The railroad runs east and west, and its cattle guard at the west, near which plaintiff's colt came to its death, is situate 750 feet west of the depot. Besides the depot, defendant maintains on its station grounds a grain elevator, a section house, a corncrib and a small tool house. The railroad right of way appears to extend about forty-five feet north of the main track, and defendant's station grounds extend 144 feet north of this. However, the station grounds thus mentioned--that is, the parcel of land 144 feet wide owned by defendant on the north side of its right of way--do not extend as far west as the point at which the cattle guard is located. It appears the station grounds--that is, the 144 feet of land owned by defendant adjacent to the right of way--extend but 569 feet west of its depot, while the cattle guard is located 750 feet west of the depot. But the matter of the western limit of the 144 feet of ground frequently referred to in the evidence as "station grounds" is not important, as we view the case, for defendant would undoubtedly be entitled to occupy more than that space if the business of the station and the safety of its employees in transacting it rendered such occupancy necessary.

Plaintiff was engaged in depositing a wagon load of grain in the elevator on defendant's station grounds, and the mare, mother of the colt which was killed, was one of the span hitched to his wagon. During the time the grain was being unloaded, defendant's freight train passed the station to the westward without stopping, and presumably frightened plaintiff's colt, for it ran from the elevator west to a point about five feet east of the cattle guard, where it collided with the train and was killed.

There can be no doubt that the colt was upon defendant's necessary station grounds at the time it started to the westward and that the collision with the train occurred some four or five feet east of the west cattle guard. But, though such be true, the principal question for consideration relates to the necessity of leaving unfenced an extensive portion of the railroad right of way between the apex of the switch and the western cattle guard. It appears that defendant's cattle guard was situate 225 feet west of the apex of its switch, and all of the right of way and station grounds east of the cattle guards were unfenced to a point where another cattle guard was located beyond and east of the depot.

While the statute requires the railroad right of way to be inclosed with a fence, outside of incorporated and platted towns and at road crossings, at all points where the railroad passes through, along or adjoining inclosed or uninclosed lands, the decisions have established an exemption from its obligation with respect to necessary station grounds and switch limits where the railroad maintains a station, though not in an incorporated or platted town, as here, for the convenience of itself and the public in the transaction of business. [Lloyd v. P. R. Co., 49 Mo. 199; Morris v. St. L., K. C., etc., R. Co., 58 Mo. 78; Acord v. St. Louis & Southwestern R. Co., 113 Mo.App. 84, 87 S.W. 537; Duncan v. St. Louis, I. M. & S. R. Co., 111 Mo.App. 193, 85 S.W. 661.] But the rule touching this matter affords immunity from the obligation imposed by the statute to fence and construct cattle guards only with respect to such station grounds and switch limits as are necessary for the transaction of business with the public and for the reasonable safety and convenience of the railroad employees in discharging their duties. [See Acord v. St. Louis & Southwestern R. Co., 113 Mo.App. 84, 87 S.W. 537; Pearson v. C., B. & K. C. Ry. Co., 33 Mo.App. 543; Morris v. St. L., K. C., etc., R. Co., 58 Mo. 78; Welsh v. Hannibal & St. J. R. Co., 55 Mo.App. 599.] Therefore, a recovery may be had in some cases where the animal is run upon and killed within the switch limits laid out and established by the railroad between the cattle guards at either end, if it appears that such switch limits are unduly extended beyond the reasonable necessities of the case in respect to the transaction of business with the public and the safety of the employees. Such cases usually arise where the animal has come upon the track and met its death through a collision with the train at the extreme of the switch limits, or between the cattle guard and the apex of the switch. In cases of this character, if it appears that the cattle guard is located at a considerable distance beyond the apex of the switch and the animal suffers death or injury from coming upon the right of way there and a resultant collision, which would not have occurred had the place in question been fenced, the question of the necessity of leaving that portion of the right of way unfenced is usually for the jury, to be considered in its twofold aspect for the convenience of the transaction of business of the...