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

Philips, P. J. I. It is urged in argument by appellant’s counsel that there was no proof as to the point [386] where the cow entered upon the railroad track. This objection is not well taken. The track being admittedly unfenced at the point of the injury, without more, the presumption could be indulged that the animal entered on the right of way thereat. McGee v. Railroad, 80 Mo. 283; Lepp v. Railroad, 87 Mo. 139. There was, moreover, direct proof that the cow was struck “ at the same place where she got on the track.” II. Appellant seems to regard the remaining question raised on this appeal as of extreme importance, and we are asked to settle the law as to how far from its stations it may establish its switches and cattle-guards, without liability to damage for failure to inclose the intermediate space with a fence. This court often feels its incompetency to determine, even to its own satisfaction, much less that of the profession, the law of the case in hand. Experience and observation have taught us to avoid discussion, by way of anticipation, of questions possibly to arise in the future, because they may be allied to the case in hand. Such opinions are not always safe guides to the profession and trial courts, and anon the “glittering generality” comes back to plague the author when confronted with its application to the particular facts of the case at bar. There are certain established principles of law applicable to all cases, but the proper application of the rule, in its essence and spirit, to the varying facts and conditions of particular cases is the test of justice and the severe trial of the judge. If we comprehend aright the position of counsel for appellant, it is this: that the law does not require railroad companies to fence their tracks at .the station and within switch limits, and that, as the roads are held liable to their own employes for injuries consequent upon placing the cattle-guards within distance from the depots where the brakemen pass over in making couplings, the company ought to be left free to determine, through its experts, the points where it will establish its switch limits and cattle-guards. It is conceded to defendant that it is [387] not required to fence its stations and reasonable switch limits. But we cannot concede to it the right to arbitrarily determine for itself the question of the necessity for the space it shall claim for its station grounds and switch limits, and where it shall build cattle-guards. This would be to put the lives and property of the citizens at the discretion of the company’s experts, without contradiction or the right of judicial revision. Our statute (sect. 809) makes it the duty of every railroad company in the state to erect and maintain along the sides of its road a fence where the road runs through or along inclosed or cultivated fields, “or nninclosed lands,” etc. The courts, by construction, have excepted from the operation of this statute, as not being within its intendment, the depot grounds and switch limits, but with the express qualification that it is only such grounds as are necessary for the transaction of the company’s business, and of the public having business, at such station. Hence it is held that “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.” Morris v. Railroad, 58 Mo. 78. And as held in Russell v. Railroad (26 Mo. App. 375), “the space to be kept open shall be no more than is necessary for the transaction of business at the depot.” So in T. &. S. F. R. Co. v. Shaft (6 Pac. Rep. 908), it is held that, “assuming the land necessarily used for station grounds need not be fenced, still, as the place where the animal was killed was not necessary, in the present case, for the use of the railroad company as a part of its station grounds, the same should have been fenced.” See also Lepp v. Railroad, 87 Mo., supra. Prom all of which it is manifest that it becomes in every such case 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 company’s use in conveniently and safely [388] transacting its business and the accommodation of the public transacting business at the station. Even if it were competent for the legislature to enact such a law (and I do not concede that it would be), it is sufficient here to say that neither has the legislature enacted such a law, nor have the courts held that the determination of this question of necessity and convenience shall rest exclusively in the judgment and discretion of the railroad company in establishing its station grounds and switch limits. It has the right to take land for such purpose and the discretion as to the space at which it will extend its switch limits and build cattle-guards, but it must be a reasonable discretion, subject to contradiction by competent evidence and to review by the courts. While jurors and courts, in passing on such questions, should give due consideration to the superior knowledge and experience of men familiar with such matters, they cannot shut their eyes to obvious facts nor stop their ears to other sources of evidence which, to an intelligent and unbiased mind, should overbalance the opinion of experts. The instructions given by the court quite fully and fairly, to the defendant, submitted to the jury the question of the necessity of the ground in question for the company’s use. There was no pretext that it was essential to the accommodation of the public. There was ample evidence in the case to entitle the plaintiff to the opinion of the jury. The cow was killed thirty-seven and one-half feet outside of the switch limits established by the company and thirteen feet outside of the town limits. There was no evidence to show that defendant had ever had occasion to run over the cattle-guards in switching at this station, or over the point where this injury occurred. On the contrary, the uncontradicted evidence was that the defendant only used the switch grounds' north of the depot. The best proof, it occurs to me, of the existence or nonexistence of the necessity claimed by the defendant, was389 the use or non-use of the grounds in question. And while, as intimated by one court, the company, in the establishment of their stations and switch limits, ought not to be restricted to the present, immediate use of all the space allotted in their plans, but should be allowed to take into consideration the prospective increase in business at such station, yet we take it that such calculation, based upon future contingency of the development of trade and commerce, should be a reasonable one, and -there should be some evidence adduced as to this predicate by the party seeking protection under it. The instructions refused by the court were properly rejected. All there was of virtue in some of them had already been sufficiently expressed in those given, while others contained the vice, covertly, of expressing the idea of the right of defendant to arbitrarily fix the limits of its station grounds. We discover no error in this record. It follows, the other judges concurring, that the judgment of the circuit court is affirmed.