Shotwell v. St. Joseph & St. Louis Railway Co.

Gill, J. I. There can be no doubt as to the •sufficiency of the plaintiffs’ complaint. Williams v. Railroad, 80 Mo. 597; Tickle v. Railroad, 90 Mo. 296; Ringo v. Railroad, 91 Mo. 667. These decisions furnish a complete answer to points 4 and 5 of defendant’s brief. [660] II. The other points urged in brief of counsel, for a reversal of this case may be answered by review of the court’s action in refusing to give defendant’s instruction number 1, which reads as follows “1. The court instructs the jury that the defendant had the legal right to build and erect side tracks and switches, and to change and remove its main track and to change or remove its cattle-guard on its right of way along its road, and if the jury believe from the evidence that it was necessary for the defendant to erect and build side-tracks and switches and remove its main track in order to conduct and carry on its business at Lexington Junction, and that, by the erection of said switches or side tracks, it was rendered necessary to remove its cattle-guard where the railroad entered the field of plaintiff Shotwell, and if the jury find from the evidence that. the fence was opened across defendant’s-right of way, where the railroad enters the field of said plaintiff Shotwell, only for the purpose of erecting said switches and side tracks, and changing the main track of defendant’s road, and the said fence was kept open long enough to erect said switch and side tracks, and change the main track of said road, and further believe that said side track and switches and change of main track, and change of cattle-guard, was made and completed without unnecessary delay, and further find that defendant used reasonable care, prudence and diligence, in making-said switches and side tracks and change of main track and removal of cattle-guard, to prevent stock from entering the field of plaintiff at the opening of said fence where it crosses defendant’s right of way, then there was no failure on the part of defendant to construct or maintain fence or cattle-guards in this case-within the meaning of the law, and the jury will find for the defendant.” This instruction is evidently framed on the theory of law, declared by repeated decisions in this state, that [661] railroad companies will be permitted reasonable time to repair fences along the right of way, after discovery of defects, or after such condition might have been discovered by the exercise of reasonable care. Hence it is insisted, that, as the necessity arose to tear out the cattle-guard, in order to construct needed side tracks and switches at the point where defendant’s road entered the field of plaintiffs, then defendant had a reasonable time to put in such side tracks and replace the switch, which if done was a complete defense to plaintiffs’ action. This case, however, rests upon no such limited ground. Plaintiffs’ ground of complaint is not so much on account of the absence of the cattle-guard as the absence of a fence along defendant’s right of way, where it passed through plaintiffs’ corn field. It seems there never had been any fence erected along this right of way through plaintiffs’ field, but to avoid this, for sake of economy likely, the railroad company had put in a cattle-guard at point of entry, thereby to- shut out cattle from the right of way and hence protect plaintiffs’ field from invasion^ of stock. The cattle-guard was a cheap substitute for the fence required by the statute. Immediately upon the opening of this railroad through plaintiffs’ field, an imperative duty was imposed on defendant to erect and maintain a lawful fence on both sides of the right of way. But this duty was not performed, and hence when cattle got upon the right of way, by reason of casting out the cattle-guard, a clear way was opened for incursions into plaintiffs’ corn field. The rule that the railroad company had time to repair has no application, since there had never been any fence, at any time, along the right of way through plaintiffs’ premises. Morris v. Railroad, 79 Mo. 367. The obligation to fence was concurrent with the necessity which arose at the instant the road was opened up through [662] this field. Silver v. Railroad, 78 Mo. 528; s. c., 21 Mo. App. 5. Defendant’s road master, Noland, testified: “The company did not have any fence on the east and the-west side of the track along their right of way through this field. There never had been any fence. We could have built fences along the right of way through the field, but we put a watchman there. We did not know the right of way. I did not think it necessary to fence the right of way as I had put a watchman there. Stock could not have gotten in very well if we had fenced the right of way.” But the plaintiffs were entitled to a lawful fence along the sides of the right of way, — the statute law so provides. It is no defense to say that a watchman was placed on guard instead. N either is there a shadow of reason to claim, as suggested, that the work of constructing these side tracks could not have been prosecuted on a fenced right of way. The court very properly refused defendant’s instruction, quite intelligently and clearly informed the jury as to the law of the case, and we can discover no reason for disturbing the judgment. It is therefore affirmed. All concur.