Johnson v. Chicago, Burlington & Kansas City Railway Co.

*1. Railroads — Obligation to Pence Under Section 809, Revised-Statutes. — Under section 809, Revised Statutes (relating to railroads), the 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 ; but the space to be kept open shall be no more than is necessary for such purposes ; and it is a question of fact, to be ascertained from all the evidence, whether the given point was not only within the claimed station grounds and switch limits, but, also, whether the point was necessary for the transaction of business, and the accommodation of the public. 2. —----How Question or Necessity, Etc., Determined. The determination of this question of necessity and convenience is not left exclusively to the judgment and discretion of the railroad company, in establishing its station grounds and switch limits. The discretion exercised by it must be a reasonable discretion, subject to contradiction by competent evidence, and to review by the courts.

Appeal from Linn Circuit Court, Hon. Gr. D. Burgess, Judge. Statement of case by the court. This is an action to recover double damages for the killing of plaintiff’s cow, by one of defendant’.s locomotives. There is no contention as to the fact of killing, but the controversy is as to the duty of the defendant railroad company to maintain a fence on the sides of its road, where the injury occurred. The undisputed evidence is that the cow was killed by one of defendant’s trains, near the station of Purdin, in Linn county. Purdin is a village of only forty or fifty inhabitants. The railroad runs north and south through this village ; the depot station is situated near the southern limits of the corporation; the switch limits extend •on both sides of the depot; the cow was killed at a point thirty-seven and one-half feet south of the south switch limits, which is about sixty-five yards south of the depot building, and thirteen feet south of the town limits. There is a cattle-guard one hundred and twenty-nine feet south of the south switch limits. The railroad has a fence on the west side of its track, from said cattle-guard north to the south switch, but has no fence on the east side. This is uninclosed prairie land. A portion of the track, on the north of the depot, is fenced inside of the north switch limit. The cow was killed in the unfenced space between the south switch limit and the cattle-guard. The plaintiff’s evidence tended to show that no sufficient reason existed why defendant should not fence its road on both sides, where this injury occurred ; that it was not necessary to the transaction of business at said station that this point should be left open, the defendant never having used the track to the cattle-guard on the south, for switching. The entire business of loading and switching cars seems to have been done on the north switch. The defendant’s evidence tended to show that the cattle-guard on the south of the station was established by the railroad company in laying out this station, and that, in the judgment of its experienced agents, it was-essential to the safety of its train men to have the cattle-guards established thus far beyond the switch limits, and that the distance to the cattle-guard was not unusual. On this state of evidence, the court gave the following declarations of law, on behalf of the plaintiff: “ If the jury believe, from the evidence, that plaintiff’s heifer got upon the track of defendant, at a point in Benton township, Linn county, Missouri, where the-same runs along, through, or adjoining uninclosed lands,, and where the same was not inclosed by a lawful fence, and not in an incorporated city, town, or village, and not upon a public or private crossing, and if they further believe, from the evidence, that said animal got upon said track, at said point, and was killed by defendant’s train of cars, in consequence of the failure of defendant to erect and maintain a lawful fence inclosing-the road of defendant at the point where said animal got upon said track, they will find their verdict in favor of the plaintiff, and assess his damages at such sum as they may believe, from the evidence, he has sustained, not-exceeding the sum of twenty-five dollars, provided they believe, from the evidence, that said defendant could have fenced said road at the point where said animal got upon said track, without causing inconvenience, either to the agents, servants, and employes of the defendant, or to those who might have occasion to transact business with said defendant, and that it was necessary for the ■defendant, or the public, that said road, at said point, should not be fenced.” “The jury are instructed that, if they find, from the evidence, that the point where the heifer strayed .upon the road was within the limits of the grounds used at Purdin for depot purposes, plaintiff cannot recover; but they are further instructed that, in determining whether the point where the heifer strayed upon the ,road was within the limits of the depot grounds at Purdin, the jury should take into consideration the nature and situation of the place, its distance from the .station-house, the relation of the place to its surroundings, and the use made of that part of the road by defendant and the public.” On behalf of the defendant, the court gave the following instructions: “1. If the jury believe, from the evidence, that the heifer was killed in the open grounds of the defend.ant, at the defendant’s station, and that it was necessary for the transaction of business with the public, and for its convenience, in the reception and discharge of freight .and passengers, that such space should be left open, they will find for the defendant.” “2. If, from the evidence, the jury believe that all parts of the defendant’s ground, north of the cattle-guard, mentioned by the witnesses, was necessary, and is used by the defendant for switching purposes, and is a part of Purdin station, on its line of railroad, and that plaintiff’s cow was struck, at a point north of said cattle-guard, and within switch limits, then defendant is not liable for injury to said cow, under the pleadings in this case, and the jury must find for the defendant.” “ 3. The court instructs the jury that it is the defend-rant’s duty to furnish its employes a reasonable, safe, and convenient place, and appliances to enable them to perform their duties, as such employes, without exposing .■said employes to unnecessary, hazard of life or limb; and if the jury believe, from the evidence, that, to place a cattle-guard. and fence, any closer to the switch stand, south of the depot, at Purdin station, than the one described by the witnesses is placed, would tend to unnecessarily increase the hazard of life and limb of defendant’s employes, in the necessary discharge of their duties and work at said station, and in operating its railway, then the verdict of the jury should'be for the defendant.” The c ourt refused other instructions asked by defendant, which are sufficiently noted in the opinion of the court. Verdict and judgment for plaintiff, from which defendant has appealed. I. The convenience of the public, as well as that of the company, is the reason why the statute, requiring the defendant to fence its track, should not apply to depot and station grounds, and it would require legislative action to induce courts to hold otherwise. “What amount of land may be taken and held for the use of a railroad company, in the exercise of its franchise, is always settled when it secures its right of way, and when it is once acquired, the company may designate and set apart so much thereof as it may deem necessary and proper, for depot and station purposes, as the exigencies of its business may require, at the points where it located its stations. The territory required for this purpose, when ascertained and set apart, constitutes what is called depot and station grounds, and varies in amount, usually, according to the location and amount of business to be done, and the necessities and convenience of the public in doing their business at the station. These grounds are not required to be fenced by the company, and of course cannot be made to extend from station to station. They are usually quite limited in extent, and are intended to furnish sufficient space for construction of sidetracks, offices, passenger-depots, freight-houses, and other buildings, ways and yards suitable and convenient for the speedy and safe reception and discharge of passengers and freight, and the storage of cars and other property belonging to the company, and persons doing business with the road. The existence, or extent, of these grounds, are not to be determined by the continued, actual use of any part thereof. When station grounds are laid out,, their contemplated future use is not unfrequently of more consideration than the actual demands at the time, in determining their shape and extent. When these grounds are appropriated, and set apart by the company, it would be neither safe nor wise to allow their limits to be curtailed or extended by a jury, in a proceeding where they come, collaterally, in question, as in this case, upon the mere showing that any part of the same was not in actual use at any particular time.” McGrath v. Railroad, 24 N. W. Rep. 854; Lull v. Railroad, 28 Mich. 510; Railroad v. Campbell, 47 Mich. 265 ; Davis v. Railroad, 26 Iowa, 550 ; Rogers v. Railroad, 26 la. 558; Packard v. Railroad, 30 Iowa, 474; Latty v. Railroad, 38 Iowa,-250; Blair v. Railroad, 20 Wis. 254; Railroad v. Caldwell, 9 Ind. 397; Railroad v. Beatty, 36 Ind. 15; Railroad v. Christy, 43 Ind. 143; Railroad v. Griffin, 31 111. 303. II. Appellant’s motion for a new trial ought to have been sustained. Railroad v. Willis, 93 Ind. 507;, 99 Ind. 93, 154; 101 Ind. 199 ; 98 Ind. 223. III. Appellant’s motion in arrest of judgment ought to have been sustained, because, on the whole record, it appears that the respondent’s heifer was killed at a place where appellant could not fence its road, hence the judgment for double damages was erroneous. Ben-net v. Railroad, 19 Wis. 145; Goodbar v. Railroad, 1 West. Rep. 133. IT. The court below committed error in refusing to give appellant’s seventh instruction, or any instruction enunciating the same principle, to-wit: That the railway company lias the right to select and lay ont its depot grounds, if it exercises the right to do so in a reasonable manner. The respondent’s instructions simply authorized the jury (in effect) to select the station grounds, and ignores the right of selection, by the railway company. Same authority as in par. I. I. The court did not err in giving instructions numbered one and two for respondent. Instruction number one was proper without any proviso, and both were unnecessarily favorable to appellant. Morris v. Railroad, 58 Mo. 78 ; Le%>%> v. Railroad, 87 Mo. 139. II. The court below did not err in refusing instructions, numbered four, five, six, seven, and eight, asked on behalf of appellant. Appellant’s fifth, seventh, and eighth instructions are virtually given in its second and third. Its fourth and sixth instructions virtually assume that the appellant company can fix its own station limits and leave them unfenced, regardless of law. It is insisted that none of the refused instructions are proper, under the decisions of our Supreme Court, above referred to, and that neither Blair v. Railroad (20 Wis. 254), Railroad v. Griffin (31 111. 303), nor the other authorities cited by appellant’s counsel, sustain their refused instructions. III. Appellant’s motion for a new trial was properly overruled. The evidence, under the instructions, fully sustains the verdict. 1Y. The motion in arrest of judgment was properly overruled. • The petition states facts sufficient to constitute a cause of action. y. The judgment for double damages was not erroneous. Parish v. Railroad, 63 Mo. 284.