Holdaway v. St. Louis-San Francisco Ry. Co.

• Decision Date: 06 March 1925
• Docket Number: No. 3561.,3561.
• Citation: 269 S.W. 641
• Parties: HOLDAWAY v. ST. LOUIS-SAN FRANCISCO. RY. CO.
• Court: Missouri Court of Appeals

269 S.W. 641

HOLDAWAY v. ST. LOUIS-SAN FRANCISCO. RY. CO.

No. 3561.

Springfield Court of Appeals. Missouri.

March 6, 1925.

Appeal from Circuit Court, New Madrid County; H. C. Riley, Judge.

Action by L. C. Holdaway against the St. Louis-San Francisco Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

W. F. Evans, of St. Louis, and Ward, Reeves & Oliver, of Caruthersville, for appellant.

S. J. Smalley, of Portageville, for respondent.

COX, P. J.

Action for double damages for killing a cow at a place where it was alleged the track of defendant should have been fenced. Verdict and judgment for plaintiff, and defendant appealed.

The cow was killed about one-eighth of a mile from the depot at the station of Conran on defendant's road. The railroad was not fenced at that point, and the action is brought under the statute for double damages based on the failure to fence. The plaintiff offered proof that the track was not fenced where the cow was killed, and that the land adjoining the right of way was uninclosed land. This met the requirements of the statute and made a prima facie case for plaintiff. The defense was two-fold: First, that the place where the cow came upon the track and was killed was within the limits of the incorporated village of Conran; second, that it was necessary to leave the track unfenced at the point where the cow was killed in order for the company to transact business with the public, and for the protection of its employees in switching cars and handling trains.

As to the second ground of defense, it is sufficient to say that the question of the necessity for leaving the track unfenced at that point was submitted to the jury under proper instructions, and, since the evidence on that question was conflicting, the verdict of the jury binds us.

As to the first ground of defense, to wit, that the cow came upon the track and was killed inside the limits of the incorporated village of Conran, the evidence, which was undisputed, is in substance as follows: Since the railroad was built to the present time a depot and a station agent has been maintained at Conran by defendant. There is a public road crossing the tracks of defendant at the depot. An order was made by the county court of New Madrid county August 11, 1905, incorporating the village of Conran. The record before us shows only the exterior limits of the corporation. It covered 360 acres of land in a square form, threefourths mile in length on each side, and the place where the cow was killed was within this territory. There is nothing in this record to show whether or not this territory, when incorporated as the village of Conran, had within it any platted town containing any blocks, streets, alleys or other public highways. In 1907 an addition to the village of Conran was platted and filed for record. This addition had 5 blocks with streets marked on it but none of these streets were near where plaintiff's cow was killed, nor is it shown that any of its streets, as platted, crossed defendant's track. The order made in August, 1905, incorporating the village of Conran, designated its first officers. These officers held one meeting soon thereafter, and granted a license to operate a saloon in the city. This is all the village ever did. No election to choose officers of the village was ever held, and no other act as a village was ever done in any way. There is some evidence that at the next census after the village was incorporated there were 120 people in the village, but at the time of the trial in this case, there were not over 10 or 15 persons living inside these limits. The cow was killed in October, 1921. At that time the incorporated village had lain dormant, and all its functions had been suspended for a period of at least 15 years.

Leaving out of consideration the question of the necessity of leaving tracks unfenced for the accommodation of the public and the safety and convenience of the employees of the defendant, there can be no doubt that the statute would require the tracks at the place where the cow was killed to be fenced, unless the company should be excused from fencing on account of the incorporation of the village of Conran. As already stated, the evidence was conflicting on the question of the necessity of leaving the tracks unfenced at the place in controversy here, and since the verdict was in plaintiffs favor, that question is settled. That leaves as the only ground upon which defendant can escape liability for double damages the alleged fact that the village of Conran was an incorporated village at the time, and that the cow was killed within its corporate limits. The evidence that the place where the cow was killed was within the corporate limits of the village when it was incorporated is undisputed and may be considered as an established fact. The incorporation of the village relieved the defendant from the mandatory duty under the statute to fence its tracks within the limits of the corporation at that time. The contention then settles down to the one question of whether the nonuser of the incorporation and the suspension of all its functions for a period of 15 years, coupled with the other facts and circumstances in the case, can cast upon defendant the duty to fence its tracks at a point where, but for the incorporation of the village, its duty to fence its tracks would have been imperative.

We do not find that the exact question here involved has ever been passed upon in this state; but the principle involved was discussed to some extent by the Supreme Court in Iba v. Railroad, 45 Mo. 469, 472, 473. The facts in that...