Duncan v. St. Louis, Iron Mountain & Southern Railway Company

• Decision Date: 21 February 1905
• Parties: DUNCAN, Respondent, v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant
• Court: Missouri Court of Appeals

85 S.W. 661

111 Mo.App. 193

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

Court of Appeals of Missouri, St. Louis

February 21, 1905

Appeal from Wayne Circuit Court.--Hon. Frank R. Dearing, Judge.

AFFIRMED.

STATEMENT.

Two of plaintiff's horses went upon defendant's railroad track where there was no fence and were struck and killed by a passing locomotive and train of cars. One of plaintiff's hogs also went upon the road where there was a defective fence and was struck by a locomotive and train and killed. Plaintiff brought suit under the statute (section 1105, R. S. 1899) to recover the value of the animals thus killed. The petition is in the usual form and is in two counts; the first is to recover the value of the horses and the second is to recover the value of the hog. The second count was confessed on the trial. The defense made on the first count at the trial was that the defendant was not required by law to fence at the place where the horses got on the track.

The evidence shows that there is a granite quarry at Granite Bend, in Mill Spring township, Wayne county (where the horses were killed) near defendant's main track. To facilitate the loading of granite blocks and other granite material taken from the quarry, defendant built a switch track about three hundred yards long on its right of way, running about parallel with the main track and connected with it at the north end of the switch. About forty yards south of the north end of the switch, where it connects with the main line, a public road crosses over both the main and the switch track south of this crossing for over a hundred yards there is no fence on either side of the tracks; near the main track in this unfenced space is a store, one dwelling house and a post office. Trains stop there to take on and deliver United States mail but there is no depot, no station or station agent and passenger tickets are not sold. There is no town incorporated or unincorporated, and no streets or alleys. The switch, as shown by the evidence, is operated exclusively for the accommodation of the company working the quarry. The railroad company pushes cars on the switch to be loaded with granite blocks and takes them out after they are loaded by the quarry company. No other use is made of the switch and the use of it has never been offered to the general public. The granite blocks from the quarry are hauled to the switch on wagons and there dropped on the ground and afterwards loaded on the cars. Defendant's evidence shows that if the road was fenced, these wagons could not get to the switch unless gates were provided, and there is some evidence tending to show that if wing fences and cattle guards were put in at the road crossing it would be dangerous to the trainmen of defendant in moving cars on the switch. Plaintiff's evidence tends to show that a fence would not interfere with the use of the switch by the quarry people and that it would be neither dangerous or occasion inconvenience to the trainmen if cattle guards and wing fences were placed at the public road crossing. The horses got on the track south of the public road crossing where there was no fence one forty and the other eighty yards south of the road crossing. The verdict and judgment were for plaintiff. Defendant appealed.

Judgment affirmed.

Martin L. Clardy and Louis F. Dinning for appellant.

The court erred in giving instruction numbered 2 for plaintiff. This instruction is not the law. It wholly leaves out a fact which was clearly established beyond dispute, that the switch or spur in question was intersected by a public road and public crossing. Wright v. Railroad, 56 Mo.App. 373.

Munger & Ward for respondent.

Where stock is killed on a railroad switch at a point where it is necessary to keep the road open in order to transact business with the public, and where said road is not fenced, the company is liable without proof of negligence. Lloyd v. Railroad, 49 Mo. 199; Morris v. Railroad, 58 Mo. 78; Russell v. Railroad, 26 Mo.App. 368. It is a question for the court and the jury, and is not left to the discretion of the railroad company as to whether a particular place is necessary to remain open and unfenced for the use of the public and necessary to the transaction of business. Vanderworker v. Railway, 51 Mo.App. 166; Crenshaw v. Railroad, 54 Mo.App. 233; Straub v. Receiver, 47 Mo.App. 194; Choteau v. Railroad, 28 Mo.App. 556.

OPINION

BLAND, P. J. (after stating the facts).

1. Appellant's counsel strenuously contends that instruction numbered one given for plaintiff is erroneous. It reads as follows:

"The court instructs the jury that if you find and believe from the evidence in this case that the plaintiff, Lee P. Duncan, on or about the first day of November, 1903, was the owner of the two horses described in the first count of plaintiff's petition, and that they went in and upon the track of the defendant's railroad near mile post 140 in Mill Springs township, Wayne county, Missouri, at a place not within an incorporated city, town or village, nor upon any public crossing, and at a place where said road was not inclosed by a fence, and that said horses of this plaintiff, Lee P. Duncan, went in and upon said track by reason of failure of defendant to erect and maintain fences on side of said road where the horses entered, that while said horses were on said railroad track they were run upon and against by the cars and engine then being owned, run and operated by the defendant, and were killed, then your verdict will be for the plaintiff on the first count in his petition, and you will assess his damages in a sum not to exceed one hundred and fifty dollars."

The instruction covers the entire case, wholly ignores the defense and is not qualified or explained by any other instruction given in the case, and is inconsistent with the instructions given on the part of defendant, but if it properly declares the law of the case the judgment should not be reversed.

In Lloyd v. Railroad, 49 Mo. 199, it was held that when it was necessary to leave the track and switches open, at a depot or station, to transact its business with the public, the company was not required to fence; and to authorize a recovery for stock killed or injured at such a point, it would be necessary for plaintiff to show actual negligence.

In Morris v. Railroad, 58 Mo. 78, the switch or side track in question was in an open prairie. The court held that there was no reason why the company should not fence along each side of the road, and said: "We are not inclined to extend the rule laid down in Lloyd v. Railroad, supra, further than the facts of that case will justify, and that is, that the company is not required to fence such grounds as are necessary to remain open for the use of the public and the necessary transaction of business at a depot or station."

In St. Louis, etc., Railway Co. v. Clark, 121 Mo. 169, 25 S.W. 192, 906, after referring to the statute requiring railroad companies to erect and maintain fences along each side of their roads, and reviewing its own decisions construing the statute, the court said: "By this legislation the policy of the law is clearly shown to be that railroad tracks should be inclosed by fences where it can be done without interfering with other public uses."

In Schafer v. Railway, 144 Mo. 170, 45 S.W. 1075 (certified by this court to the Supreme Court) the court said: "The decision in Morris v. Railroad, 58 Mo. 78, was rendered nearly a quarter of a century ago, and no doubt has ever been entertained prior to this case as to its true meaning. It has been cited and approved by this...