Smith v. St. Louis, Memphis & Southeastern Railway Company
| Decision Date | 07 March 1905 |
| Citation | 85 S.W. 972,111 Mo.App. 410 |
| Parties | SMITH, Respondent, v. ST. LOUIS, MEMPHIS & SOUTHEASTERN RAILWAY COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Ripley Circuit Court.--Hon. J. L. Fort, Judge.
AFFIRMED.
Judgment affirmed.
James Orchard for appellant.
The undisputed evidence is that this was at a switch where the public transacted business with the railroad company; that it would have inconvenienced the railroad company and also the public to have fenced the road at this point, and it would have also endangered the lives of employees of the railroad company to have fenced the road at this point. Wherefore appellant contends that its demurrer to the testimony should have been sustained. Morris v. Railway, 58 Mo. 78; Swearingen v. Railroad, 64 Mo. 73; Russell v Railroad, 83 Mo. 507; Robinson v. Railroad, 64 Mo. 412; Lloyd v. Railroad, 49 Mo. 199; Grant v Railroad, 56 Mo.App. 65; Vanderworker v. Railroad, 51 Mo.App. 156; Crenshaw v. Railway, 54 Mo.App. 166.
Thomas F. Lane for respondent.
(1) If the same facts will create a common-law liability, and also a right to recover a penalty given by statute, each cause of action must be stated in a separate count. Scott v. Robards, 67 Mo. 289. (2) A common-law action for negligence cannot be joined in the same count with the one for statutory negligence. Kendrick v. Railroad 81 Mo. 521; Harris v. Railway, 51 Mo.App. 125. (3) The same cause of action may be stated in different ways in different counts. Brinkman v. Stunter, 73 Mo. 172; Gas Light Co. v. St. Louis, 86 Mo. 495; Straub v. Eddy, 47 Mo.App. 189; Morrison v. Herrington, 120 Mo. 665, 25 S.W. 568; Mahoney v. Ins. Co., 44 Mo.App. 426. The question as to whether the railroad company might have fenced its track where the injury happened, is a question of fact for the jury to pass on. Morris v. Railroad, 58 Mo. 82; Bean v. Railway, 20 Mo.App. 643; Cox v. Railway, 128 Mo. 371, 31 S.W. 3; Hutchinson v. Realty Co., 88 Mo.App. 520. In the case of Crenshaw v. Railway, 54 Mo.App. 235-6, the court said: A railroad company is not required to fence such grounds as are necessary to remain open for the use of the public and the necessary transaction of business at the depot or station. Citing Morris v. Railroad and Bean v. Railroad, supra. Where exemption from liability is claimed upon this ground, the burden of proving the necessity for leaving its tracks unfenced and unguarded is cast upon the railroad company, and the issue on this point, being a mixed question of law and fact, must be submitted in all cases of conflicting evidence to the jury. Hamilton v. Railroad, 87 Mo. 85; Jennings v. Railroad, 37 Mo.App. 651; Pearson v. Railroad, 33 Mo.App. 543; Brandenburg v. Railroad, 44 Mo.App. 228.
A mule belonging to the plaintiff was killed by a collision with one of 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 (sec. 1105); the second on the single damage statute (sec 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 & Company, to be used in connection with a saw mill 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 & Company 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 twelve or thirteen carloads 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 unincorporated towns, where to do so would obstruct streets and alleys. Gerren case infra. 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. Russell 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 employees 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, and 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. Ray 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 wherever 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 saw mill, 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...
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