Green v. Kansas City Southern Ry. Co.
| Decision Date | 07 February 1910 |
| Citation | 125 S.W. 865,142 Mo.App. 67 |
| Parties | W. B. GREEN, Respondent, v. KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Jasper Circuit Court,--Hon. David E. Blair, Judge.
AFFIRMED.
STATEMENT.--The respondent sued for, and, on a trial before a jury, obtained judgment for double damages for an injury to his horse struck by appellant's train at an unfenced portion of its track near the station of Goodman, under section 1105 of the Revised Statutes of 1899. The defense was that such point was within the necessary switch limits of said station and hence no fence was required. The evidence tends to show that the injury was sustained within the switch limits of Goodman, a regular station of appellant's road which was used as a filling out station. This question was submitted to the jury and resolved in respondent's favor, and the question now is whether the facts are such as to warrant its submission and, if so, whether the instructions submitting it are correct.
The place where the horse was killed was seventy-five feet west of the cattle-guard and some five hundred and two feet east of the head of the switch, the distance from the head of the switch to the cattle-guard being about five hundred and ninety-five feet. The appellant maintained extensive switch yards to the southwest of the depot. What is designated the "splitlog spur" leaves the main line some five hundred feet south of the depot, connects with the depot switch and extends on southwest two thousand five hundred and seventy-six feet. This is paralleled by another switch called the "storage switch," one thousand four hundred and forty feet long. Then there is another switch--in reality, an extension southwest of the depot switch after it crosses the splitlog spur--five hundred and nine feet long. The depot switch and the splitlog spur make a continuous switch three thousand six hundred and sixty-four feet long and to this might justly be added the connecting wye, making it four thousand six hundred and eight feet or nearly one mile.
The village of Goodman is all on the southwest side of the railroad and no streets or roads cross it except one just south of the depot. It has from seven to ten families, three stores, a blacksmith shop, hotel and livery stable. North of the town half a mile is where the station used to be, a village known as Wade, with a like population, the combined population of the two villages being about two or three hundred inhabitants. It was shown that some three or four country stores in the surrounding sparsely settled country received more or less freight at Goodman. One man attended to all the business for the railroad, including the duties of telegraph operator. The two daily passenger trains--one each way--stopped there regularly, but the night trains did not stop except when flagged or sometimes to let off passengers.
The splitlog spur with the wye connection is used for a passing track and for turning engines. The two switches parallel to it are used for storing cars. The extreme southwest end of the splitlog spur (one-half mile from the depot) south of the wye connection, is used for shipping timber, ties, and so forth, which is the principal product of that country; and here also are located the fruit sheds of the Ozark Orchard Company where fruit is loaded and shipped in season. Some shipping of timber and ties is also done from the switch just south of the depot. As to the use of the switch opposite and north of the depot towards where the horse was injured, it was used to load and unload local freight at the depot, and was occasionally used by a merchant named Whitehead. Very little freight is shipped into Goodman in carload lots possibly one car a month. The railroad at this point runs northeast and southwest. It was also shown that the local freight--ten to fifteen cars in length--was the only train, with rare exceptions, that ever passed in or out of the switch northeast of the depot. As the splitlog spur was the passing track and most of the shipping of ties and timber and fruit was from the extreme south end, beyond the wye, the trains passed in either at the switch about five hundred feet south of the depot--sixteen hundred feet from this north cattle-guard--or at the wye connection a half mile farther south. The evidence of respondent's witnesses tended to show that in using the switch northeast of the depot, the trainmen did not ordinarily use over one hundred to one hundred and fifty feet; that is, that the man who alighted from the train to open it or who boarded the train after opening it, never used more than that space beyond the switch head; and hence a cattle-guard beyond that distance would not be crossed by employees in switching and could not be dangerous. This is concurred in by appellant's station agent except he says that a train passing off the switch may keep going so fast as to make the switchman run two hundred feet to catch it.
There was evidence of appellant tending to show that the real defense for leaving the unfenced portion of the road a thousand feet northeast of the depot where the horse was injured, is not on account of the local business, or business necessarily connected with the station, but on account of the through business--that is, business originating at or destined for other points and merely passing through that station. Goodman station is just over the crest of a heavy grade coming from the south, and so was used for what is called a storing or filling out station; that is, many cars--whole trains frequently--going north were stored there to be picked up by other trains going north, for the reason that more cars could be hauled by an engine after it passed the grade. This causes much stopping and switching and billing of cars at this station. In fact appellant's station agent testified that this occasions at least one-half the business of the station, and that except for this storing and filling out process, the through freights--the long trains--would not stop there at all unless to get train orders. There was some evidence tending to show that the through business could be transacted somewhere else than at Goodman, and that it is not business with the public at or in connection with the local station, but that "it belongs to the general operation of the road."
The verdict of the jury was for seventy dollars. The railroad company has perfected its appeal to this court.
Judgment affirmed.
Cyrus Crane, O. L. Cravens and J. W. McAntire for appellant.
(1) The undisputed evidence showed that the horse came upon the track at a point where a cattleguard and fence could not have been maintained with safety to the trainmen in the discharge of their duties, and the demurrer should have been sustained. Edie v. Railroad, 133 Mo.App. 9; Gilpin v. Railroad, 77 S.W. 118, 197 Mo. 319; Bridges v. Railroad, 132 Mo.App. 576; Hurd v. Chappel, 91 Mo.App. 317; Grant v. Railroad, 56 Mo.App. 65; Pearson v. Railroad, 33 Mo.App. 543; Jennings v. Railroad, 37 Mo.App. 651; Webster v. Railroad, 57 Mo.App. 451; Crenshaw v. Railroad, 54 Mo.App. 233. (2) The court should not have allowed the non-expert witnesses for plaintiff to have testified as to the amount of space required for switching cars to the side track. Gourley v. Railroad, 35 Mo.App. 87; Graney v. Railroad, 157 Mo. 666; Farber v. Railroad, 116 Mo. 81; Guffey v. Railroad, 53 Mo.App. 462; Johnson v. Kahn, 97 Mo.App. 628; Muller v. Gillick, 66 Mo.App. 500; Livery Co. v. Railroad, 105 Mo.App. 556; Mammerberg v. Railroad, 62 Mo.App. 563; Senn v. Railroad, 108 Mo. 142; Turner v. Haar, 114 Mo. 335; Impkamp v. Transit Co., 108 Mo.App. 665. (3) The court erred in excluding the questions asked by defendant of its expert witnesses, Downen and Bush. Robinson v. Railroad, 21 Mo.App. 141; Johnson v. Railroad (Mich.), 97 N.W. 760; Culver v. Railroad, 108 Ala. 330, 18 So. 827.
John T. Sturgis for respondent.
(1) The exception to the statute requiring railroads to fence their tracks, which has been grafted thereon by the courts, extends only to such switch grounds at a station as is needed for the public's and the company's business connected with the station. Bridges v. Railroad, 132 Mo.App. 536; Vanderworker v. Railroad, 51 Mo.App. 166; Russell v. Railroad, 26 Mo.App. 368; Chouteau v Railroad, 28 Mo.App. 556; Smith v. Railroad, 111 Mo.App. 410; Duncan v. Railroad, 111 Mo.App. 193. (2) Acord v. Railroad, 113 Mo.App. 84; Downey v. Railroad, 94 Mo.App. 137; Brandenburg v. Railroad, 44 Mo.App. 224; Riley v. Railroad, 89 Mo.App. 375; Prather v. Railroad, 84 Mo.App. 86; Ellis v. Railroad, 89 Mo.App. 241. (3) The evidence offered by defendant and admitted by the court that it was "usual and customary" for railroads to leave as much as a train length between the switch point and the cattle-guard, was clearly not admissible. A negligent act might thus be made lawful because "usual and customary." Daugherty v. Transit Co., 128 Mo. 37; Barth v. Railroad, 142 Mo. 555; Joyce v. Railroad (Mo.), 118 S.W. 21. (4) Where a defense is based on oral evidence, its truth is for the jury and the court cannot direct a verdict, and especially so when such evidence is the opinion of experts. Ellis v. Railroad, 89 Mo.App. 241; Gannon v. Gas Co., 145 Mo. 502; Leehorn v. Bank, 148 Mo. 256; Harris v. Box Co., 87 Mo.App. 438; Hull v. St. Louis, 138 Mo. 618; Smith v. Telephone Co., 113 Mo.App. 429; Pritchard v. Hooker, 114 Mo.App. 605; Western Union Tel. Co. v....
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