Foster v. Kansas City Southern Ry. Co.

• Decision Date: 18 April 1905
• Citation: 87 S.W. 57,112 Mo. App. 67
• Parties: FOSTER v. KANSAS CITY SOUTHERN RY. CO.
• Court: Missouri Court of Appeals

87 S.W. 57

112 Mo. App. 67

FOSTER v. KANSAS CITY SOUTHERN RY. CO.

St. Louis Court of Appeals. Missouri.

April 18, 1905.

RAILROADS—RIGHT OF WAY FENCES—KILLING STOCK—STATIONS—DOUBLE DAMAGES—STATUTES.

1. A point on a railroad where a switch is maintained for the exclusive accommodation of certain rock quarries is not a station where the railroad is not required to fence its track by Rev. St. 1899, § 1105, though trains sometimes stopped at that point to receive or discharge passengers or freight as a matter of special accommodation.

2. Where a railroad company failed to maintain a proper fence within certain switch limits, as required by Rev. St. 1899, § 1105, and plaintiff's horse got on the right of way within such switch limits, and was so injured in a collision with a train that he had to be killed, defendant was liable for double the value of the horse, as provided by such section.

Appeal from Circuit Court, McDonald County; Henry C. Pepper, Judge.

Action by C. A. Foster against the Kansas City Southern Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Respondent's horse got upon appellant's railroad track at or near Mage, in Elk River township, in McDonald county, and was struck by appellant's engine and train of cars, and so badly crippled and injured that it was killed and buried by appellant's sectionmen. The petition is in two counts. The first is a common-law declaration, and asks judgment for the actual value of the horse; the second is bottomed on section 1105 of the Railroad Act (Rev. St. 1899), and prays judgment for double the value of the horse. The answer (omitting caption) is as follows: "Comes now the defendant in the above-entitled cause, and for its amended answer to plaintiff's petition denies each and every allegation therein set up and contained, except defendant's incorporation. Further answering, defendant says that at the place where the plaintiff's horse got on the defendant's track, if it did get on the track, was at a place along defendant's road where by law it was not required to maintain either fences or cattle guards, and was within the switch limits of the depot grounds and switches at Mage, a station of defendant, and that said switches and depot grounds thereat could not be fenced or have cattle guards placed therein without interfering with the usual and customary business of defendant at said station and without endangering the lives and limbs of its employés; that fencing the same or placing cattle guards therein would cause great inconvenience to defendant in the transaction of its business and to the public; and that under the law defendant was not required to fence its station and depot grounds and switch limits at Mage and provide cattle guards, because the same was at that time crossed by and intersected by a regularly traveled public road." The verdict was in respondent's favor for $100. The court doubled the damages assessed by the jury, and rendered judgment for $200.

Cyrun Crane, O. R. Puckett, and O. L. Cravens, for appellant. John E. Christensen, for respondent.

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

The fact that respondent's horse got upon appellant's right of way and was struck by its locomotive and train and so badly injured that it had to be killed, and was killed and buried by appellant's sectionmen, is not in dispute; nor was the respondent's evidence that the horse was of the value of $100 controverted by appellant on the trial. The main points relied on by appellant for a reversal of the judgment are: First, there is no substantial evidence showing at what point on appellant's railroad the horse got on the right of way; and, second, that while the evidence does not show at what particular point the horse got on the right of way, it all tends to...