Bean v. St. Louis

• Decision Date: 09 February 1886
• Citation: 20 Mo.App. 641
• Court: Missouri Court of Appeals
• Parties: W. BEAN, Respondent, v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant.

20 Mo.App. 641

W. BEAN, Respondent,

v.ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant.

St. Louis Court of Appeals, Missouri.

Feb. 9, 1886.

APPEAL from the Washington County Circuit Court, JOHN L. THOMAS, Judge.

Affirmed.

GEORGE H. BENTON, for the appellant: Whether grounds within switch limits are or are not depot grounds, and the extent of depot grounds can only be determined by the convenience and judgment of the railroad companies, and the necessities of the public service. The above positions are clearly deduced from the opinions of the supreme court on this much litigated and vexed question. Lloyd v. Railroad, 49 Mo. 200; Morris v. Railroad, 58 Mo. 81; Stoneman v. Railroad, 58 Mo. 505; Karle v. Railroad, 55 Mo. 483; Franks v. Railroad, 55 Mo. 325; Swearingen v. Railroad, 64 Mo. 73.

JOHN F. BUSH, for the respondent: The question whether the place of the car's entry was depot or other ground, was a question of fact, and a proper issue to submit to the jury. Morris v. Railroad, 58 Mo. 81.

ROMBAUER, J., delivered the opinion of the court.

The plaintiff's cow was killed by the defendant's locomotive, whereupon he instituted this action to recover double damages under the statute. It is conceded by the testimony that the cow came upon the defendant's railroad at a place outside of any town limits, where the road ran through uninclosed fields, and was not fenced, and that it did not come upon the track, and was not killed at a road crossing. The jury found a verdict for the plaintiff, and the court entered judgment for double the amount found.

The defendant claims that the evidence fails to support the verdict, and that the court misdirected the jury.

The killing occurred about six hundred feet from and outside of the limits of the town of Irondale, and at a place where the defendant's road had several tracks or switches used in connection with the Irondale depot. No evidence of negligence was offered by the plaintiff, nor was on the other hand any evidence offered by the defendant tending to show that that part of its road could not be conveniently used for switching purposes even if fenced. The testimony on the part of the plaintiff tended to show that a fencing of the road at that place was practicable, without inconveniencing the public, and it presented the physical facts of the case as fully as circumstances would admit.

The defendant asked the court to instruct the jury “that under the pleadings and evidence the plaintiff could not recover,” and, also, “that if the cow was killed within the switch limits of the town of Irondale, the plaintiff could not recover.”

These instructions were rightly refused. In Morris v. Railroad (58 Mo. 82), where, in a case presenting similar facts, the refusal of the court to give the latter instruction was complained of, the court said the instruction was properly refused, as there is no reason why the defendant should not fence its road where it has a switch, as well as at other places.

The court, also, refused another instruction asked by the plaintiff to the effect that “if the cow came on the defendant's road within the switch...