49 Mo. 199 (Mo. 1872), Lloyd v. The Pacific R. Co.

Citation:49 Mo. 199
Opinion Judge:BLISS, Judge.
Party Name:RUTH LLOYD, Defendant in Error, v. THE PACIFIC RAILROAD COMPANY, Plaintiff in Error.
Attorney:J. N. Litton, for plaintiff in error. Burke & White, for defendant in error.
Court:Supreme Court of Missouri
 
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Page 199

49 Mo. 199 (Mo. 1872)

RUTH LLOYD, Defendant in Error,

v.

THE PACIFIC RAILROAD COMPANY, Plaintiff in Error.

Supreme Court of Missouri.

January Term, 1872

Error to Moniteau Circuit Court.

J. N. Litton, for plaintiff in error.

If there are certain approaches to railroad depots in villages and towns, in actual and constant use by the public, and which necessarily are left unfenced in order to enable the public to ship and defendant to receive and deliver freight, and to perform the duties which the law requires of it, and if, the same being fenced up, a public nuisance would be created, defendant is not liable for failure to fence such avenues of approach and departure, and is not responsible in damages, without proof of negligence, for stock killed which get upon the track through such avenues. (Ind. & Cin. R.R. v. Oestel, 20 Ind. 231; Ind. & Cin. R.R. v. Kinney, 8 Ind. 404; 6 Ind. 144; Ind. R. v. Parker, 29 Ind. 471; Lehey v. Hudson R.R., 4 Robt., N. Y., 214; Vandecker v. R. & S. R.R., 13 Barb. 390; Parker v. R. & R. R.R., 16 Barb. 315; 2 E. D. Smith, 257; Ill. Cent. R.R. v. Swearingen, 47 Ill. 206; T. & W. R.R. v. Daniels, 21 Ind. 256.)

When the literal requirement of the statute would create a public nuisance or compel the railroad to do an uniawful act, then it will be construed to require that act, if such a construction is possible.

In every sense the approaches to a depot and the ground in the immediate vicinity are public highways. No order of a County Court, no dedication by a plat, is necessary to create such a public crossing as will exempt defendant from fencing. It is enough that the crossing is used by the public. To hold that the statute requires this depot ground to be fenced is at utter variance with the entire spirit of the statute.

Burke & White, for defendant in error.

OPINION

BLISS, Judge.

The plaintiff brought suit under the fifth section of the damage act (Wagn. Stat. 520) for killing her cow, and showed that at the place where the carcass of the cow was found, the road was not fenced; but it appeared that there was a fence on the south side of the track, and that the ground upon the north side, between the track and the public highway, was contiguous to a railroad station, and was used for receiving and delivering freight, etc. The following instruction, asked by defendant and refused by the court...

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