Acord v. St. Louis Southwestern Ry. Co.

• Decision Date: 16 May 1905
• Citation: 113 Mo. App. 84,87 S.W. 537
• Parties: ACORD v. ST. LOUIS SOUTHWESTERN RY. CO.
• Court: Missouri Court of Appeals

87 S.W. 537

113 Mo. App. 84

ACORD v. ST. LOUIS SOUTHWESTERN RY. CO.

St. Louis Court of Appeals. Missouri.

May 16, 1905.

RAILROADS—DUTY TO FENCE—LIMITS OF TOWNS —DEPOTS—STATIONS—STATION GROUNDS —QUESTIONS OF FACT.

1. In an action against a railroad for the killing of cattle, whether it was necessary for the railroad to leave 60 or 70 yards of unfenced track between the switch head and cattle guard, at a very small place, where the railroad did very little business, and maintained its side track chiefly for the accommodation of one small mill, was a question for the jury, in the absence of evidence showing that it would endanger the lives or limbs of trainmen to place the cattle guard nearer the switch head.

2. Railroads may be held liable in a common-law action for damages accruing to stock injured, in consequence of the negligent conduct of employés in operating trains, inside necessary station and depot grounds, and upon public and statutory private crossings, where they are not required to fence.

3. Under Rev. St. 1899, § 2867, which authorizes the recovery of the value of stock killed by a railroad without any proof of negligence, but provides that it shall not apply to any accident occurring on a part of the road which may be inclosed by a lawful fence, or at a crossing where no fences are required, a railroad may be subjected to liability for single damages for stock killed at a place where the railroad is not required by Rev. St. 1899, § 1105, to fence its track, and yet is not required to leave the track unfenced for the accommodation of the public and the safety of its employés.

4. Under Rev. St. 1899, § 1105, requiring railroads to maintain lawful fences where the road passes through or adjoining inclosed or cultivated fields or uninclosed lands, railroads are not required to fence within the limits of incorporated towns, or platted towns the streets of which are dedicated to public use, and are not permitted to fence such portions of their tracks therein as would obstruct streets and alleys.

5. They are not required or permitted to fence public road crossings or statutory private road crossings.

6. They are not required to fence at their depots or stations where it is necessary, for the transaction of business with the public and the reception and discharge of freight and passengers, that such place shall be left open, nor will they be permitted to fence so near their depots and stations as to obstruct public streets.

7. Where the space permitted to remain unfenced for switches at their depots and stations not in incorporated or platted towns is not more than is reasonably necessary for the convenient transaction of business, they are not required to build fences and cattle guards so near the switch head as to endanger the lives or limbs of their employés in working about the switch and passing to and from trains.

8. The condition as to fences at the point at which stock enter upon the right of way of a railroad, and not the condition of the place where the stock is killed, determines the railroad's liability for the death of such stock.

9. In an action against a railroad for the death of stock, it will be presumed, in the absence of evidence to the contrary, that the stock came upon the road where it was killed.

10. A place where a railroad received and discharged passengers on signal, and where it maintained a switch track, but at which it had no building, was not a depot, within the rule permitting railroads to leave their tracks unfenced at depot grounds.

11. Whether a given place on a railroad is a station, or not, within the rule permitting railroads to leave station grounds unfenced, depends upon the business done at that place with the public, as distinguished from individuals, and whether or not trains stop regularly or on signal to receive and discharge passengers and freight, and whether or not inducements are held out and accommodations offered to the public to enter into reciprocal business relations with the railroad, and does not depend upon the maintenance of an office and agent at that place, nor on the quantum of business there transacted.

12. A place where a railroad maintained a gravel pile for a platform, and at which it stopped trains on signal to receive and discharge passengers, and maintained a siding on which the public could and did load and ship freight, was a station, within the rule permitting railroads to leave station grounds unfenced.

13. A railroad may not leave unfenced, as station grounds, more track than is actually necessary for the safe and convenient transaction of the business to be done there, and cannot arbitrarily determine for itself the question of the necessity of the space which it claims for station grounds and switches.

14. What are necessary station grounds, within the rule permitting railroads to leave station grounds unfenced, is, where stock is not killed immediately adjacent to the station, a question of fact for the jury, and not of law for the court, unless but one conclusion can be drawn from the evidence.

15. Rev. St. 1899, § 2867, authorizes the owner of stock injured by locomotives, etc., to recover the value thereof, without proof of negligence, but declares that it shall not apply to an accident occurring on any portion of the track which may be inclosed by a lawful fence, or at a crossing where no fences are required. Plaintiff's animals were killed at a town which was neither incorporated nor platted, and which consisted of two small stores, a small sawmill, and seven or eight residences. There was no public road crossing the railroad, and no depot; but the railroad maintained a side track, and received and discharged freight and passengers on signal. The side track was about a half mile long, and the track was unfenced for all that distance. Held, in an action under the above section for the death of the animals, that whether the unfenced portion of the railroad track constituted necessary station grounds, which the railroad could not fence without interfering with the convenience of the public and itself, was a question for the jury.

Appeal from Circuit Court, Stoddard County; Jas. L. Fort, Judge.

Action by R. M. Acord against the St. Louis Southwestern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This suit is for stock killed by the defendant railroad within the switch limits at Avert, in Stoddard county. The petition is in five counts. The first count declared on the killing of a cow valued at $40; the second, on the killing of a three year old heifer valued at $24; the third, on the killing of a cow valued at $35; the fourth, on the killing of a hog valued at $8; the fifth, on the killing of a hog valued at $8. The petition is in the usual form. The several animals were killed on different days. Therefore separate causes of action are stated in each count of the petition.

The action is bottomed on section 2867, Rev. St. 1899. The negligence alleged is that at the point where the animals were killed the defendant might have fenced its railroad tracks, but that it negligently failed to do so. The case was tried by a jury. At the conclusion of the evidence on behalf of plaintiff the defendant requested a peremptory instruction, separately on each count, to the effect that, under the pleadings and the evidence, plaintiff could not recover. These instructions the court refused, and defendant excepted. Defendant stood upon its request for the peremptory instructions, and introduced no evidence. The case was submitted to the jury without instructions by the court; none having been asked, other than the peremptory instructions requested by defendant, which were refused. The jury returned a verdict on the several counts separately, in all amounting to $110, for which amount judgment was entered. After unsuccessful motions for new trial and in arrest the case is brought here by appeal.

The evidence discloses the following facts: Plaintiff was the owner of the stock, and the several animals were killed by the engines and cars of defendant on its track. The total value was as found by the jury. The town of Avert, where the killing occurred, consists of two small stores and a small sawmill, of a capacity of 2,000 or 2,500 feet of lumber per day. Seven or eight families have residences there. The town is not incorporated. It is not a platted town. There are no streets or crossings. There is no public road crossing the railroad at this point. There is no depot. The railroad maintains a small pile of gravel, however, at which trains do not stop regularly, but some trains stop when flagged, and take on and discharge passengers. There is no station or ticket agent; no telegraph office or operator. Small quantities of freight are unloaded there at the platform, or, rather, gravel pile, mentioned, and people carry it away in their arms or by wheelbarrows. The railroad maintains one side track at this point, about one-half of a mile long, which is principally used by the sawmill. There are at times from 10 to 15 cars, loaded and unloaded, standing thereon. Trucks are run from the mill to the sidetrack on which the lumber is hauled to the cars; also 10 or 15 teams had been employed hauling and loading handle timber at this switch track, and a stave firm located at Malden had some staves and elm blocks loaded and shipped from there. All of that portion of the railroad between the switches where the side track was maintained and some more at either end of the siding and above the switches was unfenced. The cattle guard was between 100 and 150 yards from the switch head. It is difficult to determine from the evidence just where the various animals were killed, with reference to the gravel pile at which trains stopped, or with reference to the crossing, which crossing was not a public or private road crossing, within the legal meaning of the term, but was a place on the track used for that...