Vanderworker v. Missouri Pacific Railway Co.

Gill, J.

This case is now before us on the second appeal. At the last term it was reversed and remanded for a new trial on account of an erroneous instruction given at plaintiff’s request. 48 Mo. App. 654 . The issues have been again tried with a verdict and judg *169 ment for $25 in plaintiff’s favor, and the defendant ■appealed.

As said before, the action was brought for the value of a cow which was run over and killed by one • of defendant’s trains at (Gasconade Station. The action is based on section 4428, Revised Statutes, 1889, which ■permits'a recovery for stock killed by a railroad within the limits of a town or village where the tracks are not, but may be lawfully fenced.

I. Defendant’s assault on this judgment is practically in the nature of a demurrer to the evidence. Plaintiff made no attempt to prove that the train was ■negligently run over the cow, but rested his case on the mere fact that the animal was killed at a point where •the tracks might have been fenced, though not required under the statute to be fenced. In other words, plain'tiff seeks to recover under section 4428, rather than under section 2611, Revised Statutes.

This cow was killed within the platted limits of the 'town of G-asconade which is a small village of say a dozen houses and seventy or eighty people, on the west bank of the river by that name. . It was never incorporated, it seems, but some' thirty-five years ago a plat was filed, whereby there were marked off certain blocks, ■lots and streets. The railroad tracks run east and west with a slight curve as they approach the G-asconade •river going east. The depot is located about four hundred yards west from the river, and on the two sides of the right of way some lots and blocks were laid out. A road or street crosses the railroad tracks at ■the depot, but between this point and the river to the east (about four hundred yards, as we have stated) there is no street crossing the tracks; nor indeed does the plat even show any street laid off north and south which, if open, would intersect this space from, the -depot to the G-asconade river. A street on the south *170 side of the right of way going north is shown, but it • terminates at Oak street which runs east and west before getting to the defendant’s right of way; and besides a triangular strip of ground was left by the platters all along the south side of the railroad right of' way from the depot east to the river, and this reserved land has no streets passing through it. So, too, on the north side a street runs from north to south between the depot and the river, but terminates abruptly at the-railroad right of way. It is clear then that there is no platted street or highway of any kind crossing the-railroad right of way between the depot and east to the-river. Such then being the facts, there was nothing' to prevent the fencing of this four hundred feet if' defendant chose so to do. If then the plaintiff’s cow entered upon the defendant’s tracks and was killed by its train within such space as it might have lawfully fenced, then, unless some other objection intervenes plaintiff -is entitled to recover the value of his cow, regardless of the question of negligence in the manner of running the train. Revised Statutes, 1889, sec. 4428; Cowgill v. Railroad, 33 Mo. App. 677 ; Lane v. Railroad, 18 Mo. App. 555 ; Wymore v. Railroad, 79 Mo. 247 .

II. A further objection to plaintiff’s right to recover is based on the alleged ground, that the cow got upon the track and was killed at the depot or switch grounds of the railroad. From the evidence it appears there was a switch opened from a point on the main track within the space from the depot east to the G-asconade river, but it seems to have been little used and quite unnecessary for the ordinary business connected with the depot and station. The jury in this regard were instructed “that if they find from the evidence that the point where the cow of plaintiff strayed upon the road was within the limits' of the *171 grounds used at Gasconade Station for depot and switch purposes plaintiff cannot recover.” If any objection is to be made to'this instruction it is. too strongly expressed in defendant’s favor; for, as held in Morris v. Railroad ( 58 Mo. 82 ), the mere existence of a switch does necessarily make it impracticable to fence. It would be better to say that the company is not expected to fence such switch grounds “as are necessary to remain open for the use of the public and the necessary transaction of business at the depot or station.” The space to be kept open should be no more than is reasonably necessary for the transaction of the business at the depot. Russell v. Railroad, 26 Mo. App. 368 ; Johnson v. Railroad, 27 Mo. App. 379 . And as to what is necessary in such cases, is not left to the arbitrary judgment of the railroad company, but it is a question the courts may and do determine. Straub v. Eddy, 47 Mo. App. 194 .

Erom the showing here, no good reason appears why the defendant might not have fenced this space between the road crossing east to the Gasconade river, and so the jury found under the testimony. We discover no reason for disturbing the judgment, and it is, therefore, affirmed.

All concur.