Downey v. Mississippi River & B. T. Ry. Co.

• Decision Date: 15 April 1902
• Citation: 94 Mo. App. 137,67 S.W. 945
• Parties: DOWNEY v. MISSISSIPPI RIVER & B. T. RY. CO.
• Court: Missouri Court of Appeals

67 S.W. 945

94 Mo. App. 137

DOWNEY v. MISSISSIPPI RIVER & B. T. RY. CO.

Court of Appeals of St. Louis, Missouri.

April 15, 1902.

RAILROADS — FENCING TRACKS — NECESSITY — QUESTION OF FACT — DECLARATION OF LAW — REFUSAL.

1. A railway company is required to fence its tracks within the limits of an unincorporated town, if it can do so without obstructing the streets, except where it is necessary to keep them open, within reasonable switch limits, for the convenient transaction of its business, and the safety of its employés in handling cars.

2. It is for the jury, or for the court sitting as a jury, to determine throughout what distance it is necessary to leave the tracks unfenced, and an appellate court cannot interfere with the decision rendered unless the testimony the other way is undisputed.

3. Refusal of a declaration that a railroad company was not bound to fence its tracks at a particular point in an unincorporated town, if there were parallel tracks at that point, and a public road crossing 170 yards distant, was not ground for reversal, where the evidence did not show conclusively that it was necessary for the convenient transaction of the company's business, etc., to keep the tracks open.

Appeal from circuit court, St. Francois county; Dearing, Judge.

Action by John Downey against the Mississippi River & Bonne Terre Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Carter, Huff & Sleeth, for appellant. Merill Pipkin and R. C. Tucker, for respondent.

GOODE, J.

This action was begun to recover double damages for the killing of a sow belonging to the plaintiff by one of the defendant's trains. The accident occurred about 140 yards south of the depot or station at Desloge, an unincorporated town on the defendant's line. It is not possible for an appellate court to gather from the evidence in the record any distinct understanding of the vicinity of the spot where the animal was killed; but it does appear the defendant's main track, and also two side tracks, run parallel at that point, and for a considerable distance north and south of it; also that land on the east of the track is laid out in town lots, with some houses built on them, while on the west no lots are platted immediately opposite the point where the sow was struck, but some are platted a little to the south. The evidence is uncontradicted that no streets cross the railway tracks any nearer to said spot than 60 feet from the station, where it seems there was a crossing. One hundred and seventy yards north of the station (that is to say, about 310 yards from where the sow was struck), a country road crosses the track. Much of the testimony, and perhaps all of it, goes to show the switches spoken of were only used for handling cars, and that freight and passengers were not received or discharged anywhere along the tracks, except at the station. The right of way was unfenced at the time of the accident, but the company was preparing to fence it, and has since done so.

The defense urged is that, as the animal was killed within the...