Smith v. St. Louis, M. & S. Ry. Co.

• Decision Date: 07 March 1905
• Citation: 111 Mo. App. 410,85 S.W. 972
• Court: Missouri Court of Appeals
• Parties: SMITH v. ST. LOUIS, M. & S. RY. CO.

85 S.W. 972

111 Mo. App. 410

SMITH v. ST. LOUIS, M. & S. RY. CO.

St. Louis Court of Appeals. Missouri.

March 7, 1905.

RAILROADS — DUTY TO FENCE — CONDITIONS SURROUNDING PLACE.

A sawmill projected onto the right of way of a railroad, and lumber was loaded directly from the mill into cars on a spur track. There was no station at the place, and it was not within an incorporated town or village. No passengers were received or discharged there, only freight trains stopping occasionally, and

the nearest highway was quite a distance from the apex of the switch, so that it could have been inclosed without putting in a cattle guard at the crossing. Held, that the railroad was required to fence at such place, under Rev. St. 1899, § 2867, making a railroad liable for stock killed owing to a failure to fence where the road passes through or along inclosed or cultivated fields or uninclosed lands.

Appeal from Circuit Court, Ripley County; Jas. L. Fort, Judge.

Action by W. P. Smith against the St. Louis, Memphis & Southern Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

James Orchard, for appellant.

Opinion.

GOODE, J.

A mule belonging to the plaintiff was killed by a collision with one of the defendant's locomotives. This action is to recover for the loss. The complaint contains three paragraphs; the first one founding the cause of action on the double damage statute (section 1105, Rev. St. 1899), the second on the single damage statute (section 2867), and the third on the negligence of the defendant's engineer. A verdict was given for the value of the mule on the second paragraph, and in the discussion of the points raised on the appeal we will treat them with reference to that statement of the cause of action.

At the place of the accident there was a private switch put in by Scott & Co., to be used in connection with a sawmill they operated there. The mill itself stood partly on the right of way. The switch was between two and three hundred feet long, close to the main line of defendant's railroad, and entirely on the right of way. A private crossing, used mostly by Scott & Co. in connection with their milling business, but occasionally by others, crossed the main line a hundred feet or more from the north end of the switch. About 12 or 13 car loads of freight, mostly composed of hickory bolts and other structural timbers, are loaded at the switch every month. The country about is timber land, and the railroad is uninclosed by fences. There is no depot, station, incorporated town or village, and no building except the mill near the place.

The main point for decision is whether the railroad company was compelled by law to fence its tracks at that place, or whether it was bound to do so only if fences would not endanger crews in the operation of trains or interfere with the transaction of public business. The verdict was given for single damages; but a recovery on the single damage statute was as permissible as one on the double damage statute, if the company was under a statutory obligation to maintain fences where the accident occurred. Radcliffe v. Railroad, 90 Mo. 127, 2 S. W. 277. In a case founded on the statute (section 2867) awarding the value of an animal killed by a railroad train, instead of twice the value, judgment may go for the plaintiff if the evidence shows the animal went on the track where it was open, and the law either required or permitted a fence there, unless it was left open from the necessities of traffic. The statute requiring railroad companies to fence reads that they shall erect and maintain fences where their roads pass through, along, or adjoining inclosed or cultivated fields or uninclosed lands, and contains other expressions indicating that the Legislature only intended to compel fencing along rural portions of railroad lines. For this reason the statute has been held not to require railroad tracks within the limits of an incorporated town or city to be fenced. Edwards v. Railroad, 66 Mo. 567. No express exemption from the duty to fence everywhere outside of towns is mentioned in the statutes; but exceptions of two kinds have been allowed by the courts. One class is allowed for the welfare of the public; and for this reason railroad companies are not permitted to fence their tracks across public highways or in incorporated towns where to do so would obstruct streets and alleys. Gerron v. Railroad, 60 Mo. 405. The commodious use of streets and highways would be so interfered with where they cross railroad tracks, if the latter were inclosed, either with fences or gates, that to inclose them is forbidden. For the same reason, depots and stations may not be inclosed. Gerron v. Railroad, supra. Exceptions of the other class are allowed where there is a reasonable necessity to leave the tracks open to promote the safety of the operatives of trains and the transaction of business with the patrons of the railway company. Gerren v. Railroad, 60 Mo. 405. If an animal goes on a railroad at a place where, according to the decisions, the company either is prohibited from inclosing its track, or allowed to leave it open because of the necessities of traffic, the company is not liable, if the animal is killed by a train, for either single or double damages, except on proof that negligence of the company's employés contributed to the accident. There may be portions of the line which the statutes do not require to be fenced; yet where there is no necessity to leave the line open, if an animal goes on the track and is killed by a train at such a place, the railroad company is liable for its value in an action founded on section 2867, because, though not bound to fence at that place, the company could have done so. The only place of this sort we can call to mind, in view of the decisions on the several statutes regarding the liability of railroad companies for killing stock, is a portion of an incorporated town traversed by a railroad where there are no streets and alleys platted or open. Rhea v. Railroad, 84 Mo. 345; Wymore v. Railroad, 79 Mo. 247. It has been decided in one case, and intimated in another, that at such places in incorporated towns the company is bound to fence, for the reason that no streets cross its track. Ells v. Railroad, 48 Mo. 231; Brandenburg v. Railroad, 44 Mo. App. 224. This notion is erroneous. It arose from thinking railroad companies were excused from fencing in towns only because the use of public streets would be interfered with, whereas they are excused because the statute requiring them to fence relates to their lines where they run through the country. This was decided in Edwards v. Railroad, supra, in which the opinion in the Ells Case was condemned. It was decided in Boyle v. Railroad, 21 Mo. App. 416, that, as the statutes now read, railroad companies are bound to inclose their tracks at all places outside of towns, except public crossings and depots. This conclusion was based on the fact that the present statute requires railroads to be fenced whenever they run through uninclosed lands, whereas in the former statute the requirement was where they ran through uninclosed prairie land. But in Gerren v. Railroad, supra, it was said that even in an unincorporated town a company was not bound to fence where lands were laid out into streets crossing the track, and that it would be unlawful for railroad companies to fence up the streets.

We have noticed the several exceptions to the duty to fence, in order to see if the facts of the present case bring it within any of them. As the plaintiff's animal went on the track where there was neither an incorporated or an unincorporated town nor a station, and nothing but uninclosed timber lands and a sawmill, none of the exceptions thus far mentioned applies. But it is argued that as the Scott switch was used by the owners of the mill, and to some extent by people of the vicinity, it was a question for the jury whether the company was bound to fence there — that is, whether there was a necessity to leave the switch unfenced. At a part of a railroad near a depot, where possibly a fence can be erected without inconvenience to the patrons of the company, or danger to railway employés in loading, unloading, and shifting cars, it is commonly a question for the jury to determine whether or not the safety of train operatives, or the transaction of business, makes it reasonably necessary to leave the track unfenced. Pearson v. Railroad, 33 Mo. App. 543; Brandenburg v. Railroad Co., 44 Mo. App. 224; Downey v. Railway Co., 94 Mo. App. 137. Yet we think the question of the necessity of leaving the track open is only for the jury when the part of the track involved is in the neighborhood of a station. If the place is neither the crossing of a highway or street nor a station, but where the surrounding country consists of uninclosed lands, the statute is obligatory that the railroad company shall fence its track. This proposition was determined in Morris v. Railroad, 58 Mo. 78, an action founded on the very statute (section 2867) on which this plaintiff obtained judgment. The opinion in that case referred to the case of Lloyd v. Railroad, 49 Mo. 199, in which, for the first time, railway companies were excused from inclosing a space around a station sufficient for the commodious transaction of business with the public, and exonerated from liability if an animal which went on the track at such a point was killed without negligence.

In the Morris Case the defendant company asked an instruction that it was not liable if the animal...