Greely v. St. Paul, M. & M. Ry. Co.

• Decision Date: 21 January 1885
• Citation: 33 Minn. 136,22 N.W. 179
• Parties: GREELY v ST. PAUL, M. & M. RY. CO.
• Court: Minnesota Supreme Court

33 Minn. 136

22 N.W. 179

GREELYvST. PAUL, M. & M. RY. CO.

Supreme Court of Minnesota.

Filed January 21, 1885.

Appeal from an order of the district court, Ramsey county.

Wm. Louis Kelly, for respondent, Thomas Greely.

R. B. Galusha and J. Kling, for appellant, St. Paul, M. & M. Ry. Co.

MITCHELL, J.

The statute reads: “All railroad companies in this state shall build, or cause to be built, good and sufficient cattle-guards at all wagon crossings, and good and substantial fences on each side of such road. All railroad companies shall be liable for domestic animals killed or injured by the negligence of such companies, and a failure to build and maintain cattle-guards and fences as above provided shall be deemed an act of negligence on the part of such companies.” Gen. St. 1878, c. 34, §§ 54, 55.

1. The first contention of defendant is that this statute has no application within the limits of an incorporated city or village. There is certainly no such exception to be found in the statute, and, if we consider the evil and danger against which the legislature intended to provide, there is no reason why the requirements of the act should not apply within cities and villages as well as in the country. It is not for the court to nullify by construction the plain and explicit requirements of the statute. Cleveland & P. R. Co. v. McConnell, 26 Ohio St. 57;Brace v. New York Cent. R. Co. 27 N. Y. 269;Bradley v. Buffalo, N. Y. & E. R. Co. 34 N. Y. 427;Tracy v. Troy & B. R. Co. 38 N. Y. 437;Flint, etc., Ry. Co. v. Lull, 28 Mich. 510. We find no authority to the contrary, except in those states where incorporated towns and villages are, in terms, excepted by the statute. These, of course, are not in point.

2. The second assignment of error is the refusal of the court, on the trial, to allow defendant to prove by its road-master “that there would have been difficulty in fencing and putting in cattle-guards there,” and “that the point at which the horse wandered upon the track was within the yard limits of the defendant's road, and at that point it would have been impracticable to erect cattle-guards.” This offer, as we construe it, does not contemplate any attempt to prove that the defendants had not the legal right to fence this part of its road, or to put in cattle-guards at this street crossing, or that this “yard” was a public place used, or required to be used, by the public in transacting business with the company, or that any public convenience or necessity required that it should be left open. With the offer in this form, it is to be assumed that the difficulty and impracticability proposed to be proved have reference solely to the convenience of the company. But inconvenience to the company will not relieve it from obeying the law. Bradley v. Buffalo, N. Y. & E. R. Co., supra. Of course, this statute must be construed in the light of other provisions of law against obstructing streets, highways, and public grounds. Hence a statute like this, which, in general terms, imposes this duty on a railroad company, is always construed as allowing an exception where the company has no legal right to do the act. It does not require them, for example, to build a fence in a public street or other public grounds.

There is another exception implied as to places required to be left open by the public necessity or convenience, such as grounds about stations which are used for entrance or exit of passengers, or the receipt and delivery of freight; but this public convenience is the limit of the exception. This is as far as even the cases from Iowa and Indiana relied on by defendant go, when carefully examined. In Davis v. Burlington & M. R. R. Co. 26 Iowa, 549, in which the court held that the company was not bound to fence its “depot grounds,” the...