St. Louis Southwestern Ry. Co. v. Buice

• Decision Date: 03 April 1924
• Docket Number: (No. 20.)
• Citation: 262 S.W. 558
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. et al. v. BUICE.
• Court: Texas Court of Appeals

Page 558

262 S.W. 558

ST. LOUIS SOUTHWESTERN RY. CO. et al. v. BUICE.

(No. 20.)

Court of Civil Appeals of Texas. Waco.

April 3, 1924.

Rehearing Denied May 22, 1924.

Appeal from McLennan County Court; Giles P. Lester, Judge.

Action by H. W. Buice against the St. Louis Southwestern Railway Company and another. Judgment for plaintiff, and defendants appeal. Affirmed.

See, also, 251 S. W. 584.

Terry, Cavin & Mills, of Galveston, for appellants.

Sanford & Harris, S. P. Ross, John F. Sheehy, and Jake Tirey, all of Waco, for appellee.

GALLAGHER, C. J.

Appellee H. W. Buice sued appellants St. Louis Southwestern Railway Company of Texas, called Cotton Belt herein, and the Gulf, Colorado & Santa Fé Railway Company, called Santa Fé herein, to recover damages for killing a cow. The suit was instituted in the justice court. A trial in that court resulted in a judgment in favor of appellee. Appellants carried the case to the county court on appeal. The case was tried in that court before a jury. It was submitted on a general charge. The jury returned a verdict in favor of appellee. From judgment on said verdict appellants have brought the case to this court on appeal.

The Cotton Belt owns and operates a line of railroad westward from Waco to the junction of the Santa Fé at McGregor and beyond. The distance from Waco to McGregor is 20 miles. The station of South Bosque is situated about midway between Waco and McGregor. At the time plaintiff's cow was killed, South Bosque contained four residences; one of them being combined with a store, which store seems to have been the only one at that place. There was also a gin operated there. There was a depot building at South Bosque, but there was no agent there, and none had been kept there for a number of years. Parties receiving or loading baggage or express received or delivered the same from or to the car themselves. The main line of railroad ran through the station from east to west. There was a spur track leaving the main line some distance east of the depot and running to the gin, which was located north of the depot and across the public road therefrom. There was also a passing track which left the main line about 600 feet east of the depot and ran south of and parallel with the main line a distance of 1,200 or more feet, where it connected therewith. The distance between the rails of the passing track and the main line where the cow was killed was only about 10 feet. The distance from the depot to the west end of the passing track was 540 feet, and from that point to the abutment of the railroad bridge across the Bosque river was 134 feet. The south line of the railroad right of way abutted on private property, inclosed by a fence; but none of the right of way was fenced from the depot west to the river. How far the right of way was unfenced from the depot eastward is not disclosed. The Cotton Belt ran at that time two passenger trains a day each way, all of which stopped at said depot. It also ran one freight train a day each way, and sometimes extras. The Santa Fé operated its trains over said track between McGregor and Waco under some traffic arrangement not disclosed by the evidence. It ran mixed trains only. One such train was run each way every day. Its east-bound train on the main line about 4 o'clock on the morning of July 10, 1921, struck and killed appellee's cow somewhere west of the depot and east of the west end of the passing track.

The court instructed the jury in substance that they should find for appellee for the value of his cow unless they believed from the evidence that public necessity, convenience, commerce, or the safety of appellants' employees required that its right of way be left unfenced at the point where said cow was killed, in which event they should find for appellants. The jury returned a verdict for the appellee for $50, and judgment was rendered in his favor against both appellants therefor.

The first proposition submitted by appellants in support of their appeal is as follows:

"A railroad company, as a matter of law, is not required to fence its tracks within its depot grounds and within the switch limits of a station, so that where the evidence is undisputed that the injury to the animal occurred within the depot grounds, or within the switch limits, it is error to submit to the jury the question as to whether or not the place should be fenced."

Article 6603 of the Revised Statutes of this state in general terms provides that railroad companies shall be liable for the value of all stock killed or injured by their engines and cars, but provides that in the event a railway company shall fence its road it shall be liable only for injuries resulting from lack of ordinary care. No part of the railroad is by the terms of the statute excepted from its operation. The courts of this state and the courts of other states construing similar statutes have, from the necessities of the case, read into such statutes certain exceptions, and have uniformly held that such statutes do not apply to places where a railway company is prohibited by law from fencing its track, as where its track runs along a public street or crosses a street or public road, nor to places that public necessity or convenience requires to be left unfenced, such as its depot grounds. I. & G. N. Ry. Co. v. Cocke, 64 Tex. 151; I. & G. N. R. Co. v. Dunham, 68 Tex. 231, 4 S. W. 472, 2 Am. St. Rep. 484; Wilmot v. Oregon R. & N. Co., 48 Or. 494, 87 Pac. 528, 7 L. R. A. (N. S.) 202, 120 Am. St. Rep. 840, 11 Ann. Cas. 18.

"Depot grounds," as used in the cases just cited, with reference to the exemption of a railway company from liability for killing or injuring live stock on the ground that its track was not fenced at that particular point, is not only a comprehensive but also a flexible term. It means not only the depot proper, with its platform and approaches, but also all territory and switch tracks convenient and reasonably necessary for the use of the public in transacting its business with such company as a common carrier and actually so used, and such facilities of that character as may be reasonably necessary to enable such company to discharge its duty to the public with promptness and efficiency, and with safety to its employees; such facilities being so used. Wilmot v. Oregon R. & N. Co., supra; Grosse v. Chicago & N. W. R. Co., 91 Wis. 482, 65 N. W. 185. Since the same reason for exemption from the provisions of such fencing statutes as ours covers both the depot grounds and the switching facilities necessarily used in connection therewith, many of the decisions deal directly with the question of whether or not the company is required to fence the territory embraced within its switch limits at stations without in terms calling them a part of the depot grounds. Whether dealt with as a part of the depot grounds or separately as switch limits, the principle involved is the same, and the distinction, if any, a mere matter of terminology. When it is established as a fact that a particular point within the switch limits of a station meets the test above recited, the railway company is exempted as a matter of law from liability arising solely on account of its failure to fence its track, and such point is a part of the depot grounds within the meaning of that term as used in Railway v. Cocke, supra.

While all the courts are in practical accord on the proposition that such statutes do not require a railway company to fence its depot grounds, and that a failure to fence such grounds does not of itself render such company liable for stock killed thereon, they are not in accord as to what constitutes depot grounds. Some of the cases hold that such grounds include not only the depot itself and grounds contiguous thereto, but also all territory embraced within the limits of the system of switches laid out for use at such station, without proof of necessity or use. Such seems to have been the holding of the Court of Civil Appeals for the First District in the case of Railway v. Ogg, 8 Tex. Civ. App. 285, 28 S. W. 347, and in the case of Railway v. Wallace, 2 Tex. Civ. App. 270, 21 S. W. 973. In the first of these cases the facts are not stated, further than that the animal was...