Russell v. Hannibal & St. J. R. Co.

• Decision Date: 23 May 1887
• Citation: 26 Mo.App. 368
• Parties: WILLIAM M. RUSSELL, Respondent, v. HANNIBAL AND ST. JOSEPH RAILROAD COMPANY, Appellant.
• Court: Kansas Court of Appeals

26 Mo.App. 368

WILLIAM M. RUSSELL, Respondent, v. HANNIBAL AND ST. JOSEPH RAILROAD COMPANY, Appellant.

Court of Appeals of Missouri, Kansas City.

May 23, 1887

APPEAL from Jackson Circuit Court, HON. JAMES H. SLOVER, Judge.

Affirmed.

The case and facts are stated in the opinion.

CRITTENDEN MCDOUGAL & STILES, for the appellant.

I. The side track and switches constituted a part of the station grounds at Harlem. It was the only place designated and used by the company and the public for receiving and discharging freight at that station, and, owing to its communication with or accessibility of approach from the county road, the most suitable and practicable one. The evidence being without conflict on this point, it was erroneous for the court to hold that the company was liable for its failure to fence at that point. The public convenience required it to be kept open. The true rule under statutes like that of Missouri and Iowa, is, " that railroads are required to be fenced when it is fit proper and suitable in view of the public convenience to so enclose them, and that depot or station grounds, when the business of the road and the interests of the public so require, may be kept open and left uninclosed. It may have been entirely practicable for the company to have fenced its road, yet it may have been relieved of the duty out of regard to the interests of the public." Latty v. Railroad, 38 Iowa 250; Davis v. Railroad, 26 Iowa 550; Smith v. Railroad, 34 Iowa 506; Lloyd v. Railroad, 49 Mo. 199. " A railroad company is not liable, without proof of negligence, for the death of animals killed by its cars at a point where it is necessary for the transaction of its business that the space about its tracks should be kept open, notwithstanding the road at that point is not fenced, and although that point is not in a town nor at a public crossing." Robinson v. Railroad, 21 Mo.App. 141.

II. The court erred in refusing defendant's first and second instructions. The facts stated in them and the conclusion asked, are such as that the finding should have been for the defendant, and the declarations are correct expressions of the law under the authorities cited. So, also, as to the fourth, which stated, from the evidence, that it was impracticable for a fence to have been maintained at that place.

G. F. BALLINGAL, and BOTSFORD & WILLIAMS, for the respondent.

I. The uncontradicted evidence in the case showed that the mare of the respondent came upon the track of appellant's road, and was injured at a point on appellant's track nearly a mile east of the limits of the town of Harlem, not within the limits of any station of the appellant's road, and where the track of appellant's road passed through open and unenclosed lands left unfenced by the appellant. The appellant's first and second declarations of law were properly refused and respondent's declaration of law properly given. The uncontradicted evidence showed that the switch of appellant, where the same passed along the unenclosed and unfenced lands where respondent's mare was injured, was not within the limits of appellant's station at Harlem, and that respondent's mare came upon appellant's track about one hundred yards east of where she was injured, where the said track passes in the open country along and through adjoining unenclosed lands not fenced by appellant. Appellant's first and second declarations of law were, therefore, properly refused.

II. There was no evidence to show that it was necessary for the transaction of business with the public, and for its convenience in the receipt and discharge of freight, that the place where respondent's mare came upon appellant's track should be left open and unfenced. Appellant's second declaration of law was, therefore, properly refused.

III. The facts that switches of appellant railroad company pass through open and unenclosed lands near a station of the company, but not within the limits of the station, and may be or are used for the loading and unloading of freight from cars standing thereon, afford no excuse for appellant not fencing its said road when the same passes through said open and unenclosed lands where respondent's mare came upon appellant's track, and where it was injured by the cars operated on appellant's road. Morris v. Railroad, 58 Mo. 78; Robinson v. Railroad, 21 Mo.App. 141.

IV. The fact that the Wabash road had its road and side track alongside of the main track of appellant's road does not relieve appellant of the statutory duty of erecting and maintaining fences. Rutledge v. Railroad, 78 Mo. 286; Roselle v. Railroad, 79 Mo. 349.

V. The case having been tried by the court without a jury, and the finding from the evidence being, manifestly, for the right party, the judgment will be affirmed. Russell v. Railroad, 83 Mo. 507; Jantzen v. Railroad, 83 Mo. 171.

VI. There having been no issue made by the pleadings, that appellant was relieved of its statutory duty to fence its track where the same passes through the unenclosed lands where respondent's mare was injured, the declarations of law asked by appellant and refused by the court were foreign to the issues raised by the pleadings, and were properly refused. If appellant claimed exemption from the statutory duty of erecting and maintaining lawful fences on the sides of its road where respondent's mare came on the track, where the same passes through, along or adjoining unenclosed lands, not within the limits of any town or station on defendant's road, and not the crossing of any highway, and a state of facts existed justifying such exemption, then appellant should have pleaded the same affirmatively in its answer. Having failed to do so by a general denial, appellant cannot obtain the benefit of such exemption, by asking declarations of law based thereon. Meyers v. Union Trust Co., 82 Mo. 237, and cases cited; Benson v. Railroad, 78 Mo. 513; Busby v. Railroad, 81 Mo. 53; Mosman v. Bender, 80 Mo. 579; Gailbraith v. City of Moberly, 80 Mo. 484; Wade v. Hardy, 75 Mo. 394; Price v. Railroad, 72 Mo. 414; Northrup v. Ins. Co., 47 Mo. 435; Hamilton v. Railroad, 87 Mo. 89; Waldhier v. Railroad, 71 Mo. 514; Eden v. Railroad, 72 Mo. 212; Bank v. Murdock, 62 Mo. 70.

PHILIPS P. J.

This case has been in the supreme court, and is reported in 83 Mo 507. It is for the recovery of damages for the killing of plaintiff's horse by defendant's cars, near Harlem, in Clay county. The supreme court reversed the case and remanded it. On its return to the circuit court the plaintiff filed an amended petition, which contained three counts, as did the original petition, covering substantially the same facts, rectifying the defects in the statement of the second count, on which the former recovery was had, and for which defects the cause was reversed in the supreme court. On re-trial the plaintiff recovered judgment on the third count of the petition; to reverse which this appeal is prosecuted. It is distinctly stated in the opinion delivered by the supreme court that, on the plaintiff's own motion, the jury returned, on the first trial, a verdict for the defendant on the first and third counts, and the appeal was prosecuted by the defendant from the judgment on the second count. And yet on this second trial the plaintiff was suffered to recover judgment on the third count, on which cause of action judgment on the former trial had gone for the defendant, which stood unreversed. But as the defendant did not see fit to raise this question, at the trial, either by plea, or putting in evidence the former recovery, nor, indeed, has presented such matter on this appeal, the question is not before us on this record for consideration. The appellant seems rather to prefer to press the single question as to the obligation of the railroad company to erect and maintain a fence on the sides of its track where the injury occurred. Its duty in this regard has been thrice passed upon by the supreme court. But it seems about to prove the judicial Banquo of our courts. It will not down. This question was involved in the case of Rozelle v. Railroad (79 Mo. 349); and in Jantzen v. Railroad (83 Mo. 171); and in both instances was determined against the companies. And when the present action was remanded by the court, it was observed by the writer of the present opinion, that: " We do not perceive anything in the facts developed in the trial of this cause to exempt the defendant...