Acord v. St. Louis Southwestern Railway Co.
| Decision Date | 16 May 1905 |
| Parties | ACORD, Respondent, v. ST. LOUIS SOUTHWESTERN RAILWAY COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Stoddard Circuit Court.--Hon. Jas. L. Fort, Judge.
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, R. S. 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 a 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, consisted of two small stores and a small sawmill of a capacity of two thousand or two thousand five hundred 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 ten to fifteen cars, loaded and unloaded, standing thereon. Trucks are run from the mill to the side track on which the lumber is hauled to the cars also ten or fifteen 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 one hundred and one hundred and fifty 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 purpose. This much can be gleaned from the record; that the heifer, valued at $ 20 or $ 25 was killed about sixty or seventy yards outside the switches between the switch-head and the cattle guard; the two cows and the two hogs were killed at some point within the limits used for switches. A witness said one hog was killed some distance south from the crossing and one killed one hundred and fifty yards north from the crossing. Just where the two cows were killed it is impossible to determine from the record, except that it was within the switch limits. Witness Robinson said: "But where the stock was killed was not near the mill," therefore it could be fenced so far as the mill was concerned; so we take it that the heifer was killed sixty or seventy yards outside the switch limits at a place which might have been fenced, and the two cows and the two hogs were killed at some place within the half mile occupied by the side track; the hogs not near the crossing or gravel pile, and none of the stock killed so near the mill but that the ground there could have been fenced without inconvenience to the mill interests. All of the witnesses swore that the grounds where the stock was killed might have been fenced without danger to the employees but some of them admit on cross-examination that to fence the entire open space would be inconvenient to the mill men and to those desiring ingress and egress to the gravel pile where the train stopped on being flagged. Defendant argues that the stock was killed at a point where it is not required to fence its tracks, insisting that the grounds there are depot or station grounds and necessary switch limits in connection with its station at Avert and that this court should so declare as a matter of law.
Judgment affirmed.
S. H. West and W. H. Miller for appellant.
(1) It being conceded by plaintiff that his stock was killed in the switch limits of Day (Avert) Station, it goes without saying that defendant was not required to fence its right of way at that point. Hillemann v. Railroad, 99 Mo.App. 271, 73 S.W. 220; Morris v. Railroad, 58 Mo. 78; Johnson v. Railroad, 27 Mo.App. 379; Russell v. Railroad, 26 Mo.App. 368; Lloyd v. Railroad, 49 Mo. 199. (2) Whether or not the company could have fenced its right of way, having due regard to the convenient transaction of its business and the safety of its, employees, is ordinarily a question of fact, but when there is no dispute as to the facts it becomes a question of law. O'Malley v. Railroad, 113 Mo. 319, 20 S.W. 1079; Bulond v. Railroad, 36 Mo. 484.
H. S. Green for respondent.
NORTONI, J. (after stating the facts).
Appellant's first point in his brief and in fact the point in the case, is: "It being conceded by plaintiff his stock was killed within the switch limits at Day (Avert) station, it goes without saying that defendant was not required to fence its right of way at that point." The evidence shows that the road was unfenced not only within the limits of the switch but as much as one hundred or one hundred and fifty yards beyond the head or apex of the switch and the heifer was killed on this unfenced track sixty or seventy yards from the switch-head. We think it would be going too far for the court to hold as a matter of law, in the absence of evidence showing the necessity of leaving so much space unfenced, that the railroad could leave open one-half mile of switch limits at a place like Avert and that as much as sixty or seventy yards should be left open by it between its switch-head and cattle-guard. There is no doubt that where the railroad has a right to and does maintain switches at a depot or station, it has the right to leave open and unfenced such ground traversed by the switches and so much also between the apex of the switch and the nearby cattle-guard as is reasonably necessary in order to avoid endangering the lives and limbs of its employes in performing their necessary duties in working about the switch. [Pearson v. Ry., 33 Mo.App. 543.] But it seems almost unreasonable to leave sixty to seventy yards for this purpose. The evidence is that one hundred or one hundred and fifty yards were open and unfenced at this point but as the heifer was killed sixty or seventy yards from the switch-head, we are concerned with this much and no more. This would be one hundred and eighty or two hundred and ten feet. There is no evidence tending to show that it would endanger the lives or limbs of trainmen to place the cattle-guard near the switch-head; in the absence to that effect it seems that it is more than reasonably necessary for the purposes and we very promptly overrule the assignment in so far as the killing of the heifer is concerned and say that it was for the jury. [Welsh v. Ry., 55 Mo.App. 599.] It will be necessary, however, to give the matter of the killing of the other stock closer attention.
So much of our statute (sec. 1105, R. S. 1899) as is pertinent here, is as follows:
"Every railroad corporation running or operating any railroad in this State shall erect and maintain lawful fences on the sides of the road where the same passes through, along or adjoining inclosed or cultivated fields or uninclosed lands . . . and also to construct and maintain cattle-guards where fences are required, sufficient to prevent horses, cattle, mules or other animals from getting on the railroad."
The language employed in this section to the effect that fences are required where the road passes along inclosed fields or uninclosed lands is indicative of the purpose of the Legislature to require roads to be fenced along such portions thereof as pass through out-of-town or rural districts and for this reason our Supreme Court, in construing it, has long since established the rule that no fences are required thereby within the limits of incorporated towns and cities....
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