Hillman v. Grays Point Terminal Railway Company

• Decision Date: 03 March 1903
• Citation: 73 S.W. 220,99 Mo.App. 271
• Parties: HENRY HILLMAN, Respondent, v. GRAYS POINT TERMINAL RAILWAY COMPANY, Appellant
• Court: Missouri Court of Appeals

73 S.W. 220

99 Mo.App. 271

HENRY HILLMAN, Respondent, v. GRAYS POINT TERMINAL RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

March 3, 1903

Appeal from Scott Circuit Court.--Hon. Henry C. Riley, Judge.

REVERSED.

Judgment reversed.

S. H West and W. H. Miller for appellant.

(1) A simple inspection of the plat of the railroad yards and grounds shows the absurdity of the position that these yards might lawfully be fenced. And when the plat was conceded to be correct and that the animal was killed in these yards, the court should then and there have given defendant's peremptory direction to the jury to find the issues for the defendant. (2) For a still greater reason should the peremptory instruction asked by defendant at the close of all the evidence have been given. (3) The jury found that the defendant should have fenced off from the outside world a village of from 300 to 400 people and its terminal yards in which there was several miles of tracks, and this without the evidence of a single witness testifying directly to the feasibility of such a thing.

H. C O'Bryan for respondent.

(1) This action is brought under section 2867, Revised Statutes 1899, and was formerly known as fifth section of Damage Act. Under this section the courts have repeatedly held it is not necessary to allege or prove negligence on the part of defendant further than that a fence could lawfully have been built and maintained, but that it was not done. Edwards v. Railroad, 66 Mo. 567; Russell v. Railroad, 83 Mo. 510; Wymore v. Railroad, 79 Mo. 247. (2) The court properly overruled defendant's objection to the introduction of testimony under this petition, for it fully meets all that has been required of a petition in the above cases. When the animal is killed in the yards, the company is prima facie exonerated, etc., says defendant, but avoids citing any law bearing out that statement, while the cases cited above show they must fence yards, switches, and depot grounds when practicable. In the case of Bean v. Railroad the defendant asked "that if the cow was killed within the switch limits of the town of Irondale the plaintiff can not recover," which was refused and the court said rightly. The fact of injury and that the road was not fenced when it occurred, make a prima facie case against the company, under the section this action was brought. Wymore v. Railroad, 79 Mo. 249. (3) Appellant's fifth contention is that instruction No. 2 given for plaintiff and instruction No. 3 given for defendant conflict. Instruction No. 3 given for appellant places the burden of proof on the plaintiff. The burden of proving the allegations of the petition rested on the plaintiff, but the burden of proving the necessity of leaving the tracks unfenced rested on the defendant. Crenshaw v. Railroad, 54 Mo.App. 235.

REYBURN, J. Bland, P. J., and Goode, J., concur.

OPINION

REYBURN, J.

--This is a suit commenced before a justice of the peace in Scott county, to recover damages for the value of a bull killed by defendant in the operation of its railroad. On appeal to the circuit court a trial was had before a jury, which rendered a verdict for plaintiff, and defendant has appealed to this court. The statement set forth that on the 16th of June 1900, defendant was operating a railroad in Kelso township, Scott county; that on that day a Jersey bull owned by plaintiff, valued at $ 65, was run over and killed by the engine and cars of defendant; that the place at which the bull went upon the railroad and was killed was not at a point where the railroad was inclosed by a lawful fence, nor at the crossing of any public highway, and that the animal went upon the railroad and was killed at a place where the defendant might have lawfully erected and maintained fences on the sides of its railroad sufficient to prevent animals from getting on the road, but had failed to erect and maintain such fences, whereby the plaintiff had sustained the damages. The evidence in the case was brief, substantially undisputed, and established that Graysboro, an unincorporated town at the terminus of defendant's railroad on the Mississippi river, was divided into what was called Graysboro and Graysboro Addition or Grays Point, or the old town and the new town. Graysboro not being legally organized, had no town government, no streets laid out, but there was a wagon road running along the defendant's main track through its yards to the depot, which road, however, was not a public road, and there was a crossing near the depot used for wagons and the people going to and from the depot and from one part of the town to the other. The animal was killed in the yards of defendant, and its value and the place where it was killed were not disputed. The section of the statute under which this action is brought imposes no obligation upon a railroad to fence anywhere, but was intended to hold out an inducement for the railroads to fence their track where it was not deemed absolutely necessary to compel them by law to do so. Sec. 2867, R. S. 1899, p. 730. While the act does not require the railroad company to erect any fence, yet it relieves the plaintiff in a suit for damages...