Green v. Kansas City Southern Railway Co.

NIXON, P. J. (after stating the facts as above).— As will be seen from the foregoing statement, the point where the respondent’s horse came upon the appellant’s railroad tracks and was killed is about one thousand feet northeast of the depot and about five hundred feet in the same direction from the switch-block or apex of the switch. The horse was killed within the switch limits — that is, between the apex of the switch and the cattle-guard, about fifty or one hundred feet southwest of the cattle-guard. There were long passing and storage tracks in a southwesterly direction from the depot commencing some five hundred feet from it and extending farther on southwest, which were largely used by the company in business in connection with the local station. The appellant’s brief concedes its liability for double damages unless the railroad company is excused from fencing the point where the horsé was injured on account of its being reasonably necessary for switching and depot grounds, due regard being had to the business — 75 — done at Goodman station and the safety of the employees in doing such business. The respondent concedes that both the amount of business done and the safety of the trainmen must be taken into account in determining the amount of road which ought to be used for switch purposes and which may remain unfenced. The case was tried and the instructions given on this theory. I. The appellant has assigned as error that the trial court should as a matter of law have declared by instructions that the point where the injury took place was within the the necessary and reasonable switch grounds of the appellant, due regard being had for the safety of employees, and that appellant’s demurrer to the evidence should have been sustained on this account. In answer to this contention of the appellant, the respondent argues that in determining this question, the law excludes the through business of the road, such as the mere passing of trains, the storing of cars not used in connection with the station, extra switching, taking train orders, and so forth, occasioned thereby. To maintain the proposition, the appellant asks this court to make the following finding: “That the undisputed evidence showed that the horse came upon the railroad track of the appellant at a point where the cattle-guard and fences could not have been maintained with safety to the trainmen in the discharge of their duties,” and that appellant’s demurrer should have been sustained by the trial court. In support of this position, several cases are cited. As we have stated, the undisputed evidence was that the horse went upon appellant’s railroad track and was killed at a point some five hundred feet northeast of the head-block or head of the switch, and seventy-five or one hundred feet inside of the cattle-guard, and that such point was some one thousand feet northeast of the depot. Should the court have declared as a matter of — 76 — law that the switch limits as above stated were required for the transaction of appellant’s business and for the safety of its employees? In order to bring into relief the questions here presented, we pass in review some cases from the appellate courts where the position of the appellant herein has been expressly negatived, and in which, under facts nearly parallel to those in this case, it has been held that it was not a question of law for the court but a question of fact for the jury. In the case of Acord v. Railroad, 113 Mo. App. 84, 87 S. W. 537, the switch limits under consideration is extended from one hundred and eighty to two hundred and twenty feet. The first part of the opinion deals with the killing of a cow sixty or seventy yards from the switch head. The court say on pages 89 and 90: “There is no doubt that the railroad has a right to and does maintain switches at a depot or station and it has the right to ieave open and unfenced such ground traversed by the switches and so much also between the apex of the switch and the nearby cattle-guard as is reasonably necessary in order to avoid endangering the lives and limbs of its employees in performing their necessary duties in working about the switch. But it seems almost unreasonable to leave sixty to seventy yards for this purpose. The evidence is that one hundred or one hundred and fifty yards were open and unfenced at this point but as the heifer was killed sixty or seventy yards from the switch head, we are concerned with this much and no more. • This would be one hundred and eighty to two hundred and ten feet. There is no evidence tending to show that it would endanger the lives or limbs of the trainmen to place the cattle-guard near the switch head; in the absence to that effect it seems that it is more than reasonably necessary for the purposes and we very promptly overrule the assignment in so far as the killing of the heifer 'is concerned and say that it was for the jury.” On page 102 of the same opinion, the court — 77 — say: “The law will not permit the'railroad to leave unfenced, on the score of station grounds, more than is actually necessary for the safe and convenient transaction of the business to be done there. . . . The evidence wholly fails to show that the stock was killed near the station. Had it shown this, we might be able to hold, as a matter of law, that such grounds immediately adjacent to the station even at a small place like Avert, could not be fenced without interfering with the convenience of both the public and the company and the safety of the employees- as well.” In the case of Brandenburg v. Railroad, 44 Mo. App. 224, the evidence showed that the animal went upon the track about three hundred feet south of the depot and about two hundred and forty feet south of the southern end of the switch. The court say “Whether it was necessary for the safe and convenient transaction of the defendant’s business with the public to leave its track unfenced to a distance of two hundred and forty feet outside the end of its switch, is a question that, in our opinion, is fairly debatable. Hence, we decline to hold that the court committed error in submitting the question to the jury in the first instance. In the case of Downey v. Railroad, 94 Mo. App. 137, 67 S. W. 945, the stock was killed at a point about one hundred and forty yards south of the depot where there were two switches parallel with the main track, thus making the point within the actual switch yards. The defendant demanded a peremptory instruction in its favor based on this fact. It was held that “the company is not the sole judge of the space which it may leave unfenced 'for a yard or switch limits. It is for the jury, or the court sitting as a jury, to say throughout what distance it is necessary to leave the tracks unfenced.” The general proposition seems to be well established that, what are necessary station grounds where stock is not killed immediately adjacent to a station, — 78 — is a question of fact for the jury and not a question of law for the court. It is only where the extent of the switchyards is so reasonable or from other peculiar circumstances of the case, but one conclusion can be drawn from the evidence that the question becomes one of law for the court. [Acord v. Railroad, supra; Downey v. Railroad, supra; Brandenburg v. Railroad, supra; Vanderworker v. Railroad, 51 Mo. App. 166; Riley v. Railroad, 89 Mo. App. 375; Prather v. Railroad, 84 Mo. App. 86; Ellis v. Railroad, 89 Mo. App. 241; Smith v. Railroad, 111 Mo. App. 1. c. 415, 85 S. W. 972.] II. The appellant further assigns as error the giving of instructions for respondent over its objections, of which instruction numbered three will serve as an illustration: “You are instructed that in determining the amount of its track and the right of way which the defendant railroad had a right to leave unfenced on account of its business done at and in connection with the station at Goodman, you will take into consideration only the amount of business transacted with the public at said station and not its otm lousiness in u^ing the suñtch in question for the passing of through trains or storing of cars not used at said station, due regard being had to the safety of the railroad employees in the use and operation of said switch.” The negative clause of this instruction — the part in italics — is the part to which the appellant takes special exception. Speaking on this particular question as to whether the switch limits should be sufficient for the passing of through trains or the storage of cars not used at the station and the business transacted at the station, attention is directed to the case of Vanderworker v. Railroad, 51 Mo. App. 166. The court there held that the jury should be instructed that the railroad could leave unfenced such switehgrounds “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 — 79 — than is reasonably necessary for the transaction of the business at the depot.” In the case of Russell v. Railroad, 26 Mo. App. l. c. 374, this statement is made: “As to the switch on the south side, there cannot be .any pretense that it was used for any other purpose than for the passing of trains, and as a place for empty cars to stand, for the lack of such facilities on the Kansas City side of the river.” And in the same opinion the court say: “From which it is manifest that such switches must be at or near the depot, and the space to be kept open shall be no more than is necessary for the transaction of business at that depot.” In the case of Chouteau v. Railroad, 28 Mo. App. 556, the rule is stated: “The rule in respect to the question here presented is, that though the point of injury is within switch grounds, and though such grounds be used in connection with a depot or station, the railroad company must nevertheless erect and maintain fences and cattle-guards, unless such fences would interfere with the transaction of business, to the inconvenience of the public. The test is, whether it is necessary for the transaction of business with the public that such grounds should be left open.” In the case of Smith v. Railroad, 111 Mo. App. l. c. 420, 85 S. W. 972, referring to the case of Chouteau v. Railroad, “it was explicitly decided that switches and side tracks used to stand cars on, and for switching and passing of trains, but not in connection with a depot, or in a town or village must be fenced. . . . But the policy of the law is to grant no exemption on the score of convenience and safety in doing business, except about stations and depots.” In the latest case on this subject, Bridges v. Railroad, 132 Mo. App. 576, 112 S. W. 37, the switch was thirty-two hundred feet long and stock was killed on a part beyond the town limits. The railroad claimed that to fence this part and put in cattle-guards would en — 80 — danger tlie lives and safety of trainmen. The court found this to be a fact, but also found that the part of the switch within the town limits was sufficient for the local business of the station, using this language: “The maintenance of a passing-track merely, does not have any necessary connection with a station. It belongs to the general operation of the road. . . .” Again, “If a switch is not needed át a station for the public’s use of the company’s business at such station, its location there does not aid the company in defending against its duty to fence. The general rule of the cases may be summarily stated as follows: The exception to the statute requiring railroad companies to fence their tracks is one of necessity and has been engrafted thereon by courts ,and extends only to such switch grounds at a station which are needed for the public’s and the company’s business connected with the station and not belonging to the general operation of the road, such as the passing of trains, storing and billing out of cars, turning in and taking out of way bills of through cars, inspecting through trains, giving and taking running orders on through trains and the like. III. Another error assigned is that the court should not have allowed the non-expert witnesses of the plaintiff to testify as to the amount of space required for switching cars to the side track. As to the class of testimony which is sought to be reached by this objection, we quote from the testimony of witness Roberts : “Q. How close do you say the cattle-guard could be placed there so as not to interfere with their operating the switch as you have observed? A. Well, I would judge they could have one within one hundred feet of there and be in safety from what I have seen them work there at those switch-stands and points. “Q. Did they have to cross the cattle-guard? — 81 — “The Court: The question is whether or not in operations as you have observed if placed one hundred or one hundred and fifty feet away from there they would have to cross the cattle-guard in ordinary work as you have observed it? A. I don’t think they would.” This evidence and evidence of this class introduced by the plaintiff is not mere opinion, but matters and facts within the observation of the witness. Where questions, even if objectionable in form, are understood and answered by the witness as calling for matters and facts within his observation, they do not elicit mere opinions independent of observed facts. If all the facts upon which the opinion or judgment of' the witness are based are within the knowledge of the witness, and such facts are given to the jury, such explanations are not properly expert testimony and their admission or rejection is harmless. [17 Cyc., 60; Owen v. Railroad, 109 Mo. App. 608, 83 S. W. 92; Joyce v. Railroad, 219 Mo. 344, 118 S. W. 21; Hoffman v. Railroad, 51 Mo. App. 273.] IV. It is assigned as error that the trial court excluded the questions asked by defendant of its expert witnesses Downen and Busch. As an example of the evidence proposed to be introduced, the following question was asked the witness Busch: “Q. Taking your experience into consideration, the amount of business as shown by the witnesses as usually done at stations like Goodman, Missouri, how far is it usual and customary to place the cattle-guard from the end of the switch in order to do the switching with apparent safety to the employees?” An answer to this question was not permitted by the court. The following question was asked and allowed by the court to be answered: “Q. Now taking into consideration your experience in railroad affairs and taking into consideration — 82 — the amount of business usually done at stations like Goodman, Missouri, how far is it usual and customary to place the cattle-guard from the end of the switch? A. Usually a train’s length.” We see no grounds for complaint by reason of the denial of an answer to the first question as it is substantially covered by the answer the court allowed to be given to the second one. But in any event, the exclusion of expert testimony in this case would have been entirely proper on the part of the court. The general rule may be thus stated: If the jury, although presumably devoid at the beginning of the trial of experience concerning a subject-matter, can be so informed during its progress as to reach an accurate conclusion, the subject is not one for inference, conclusion or judgment, and the evidence may be excluded in the discretion of the court. [17 Cyc., 45.] And it has been expressly and specifically decided in cases involving the questions at issue as to the extent of switch limits and the duty of railroads to fence that expert testimony is not allowed. [Railroad v. Modesitt, 124 Ind. 212, 24 N. E. 986.] In Railroad v. Hale, 93 Ind. 79, the court declares “that the witness cannot express an opinion upon the point which it is the duty of the jury to determine.” It was for the jury from the facts in evidence to say whether the. switch limits at Goodman were necessary at the place where the horse went upon the track and was killed and not a case for opinion ’.evidence. [Railroad v. Modesitt, supra; 12 Cyc., 468.] The court in its discretion would have committed no error to have excluded entirely the expert testimony offered by the defendant. The evidence offered by the defendant and admitted by the court that it was usual and customary for railroads to leave as much as a train’s length between the switch-point and the cattle-guard -yas an error in favor of the defendant. Such evidence was clearly inadmissible. A negligent act might thus be made lawful because “usual and custo — 83 — mary.” Instruction numbered eight of those given for the defendant is erroneous for the same reason. [Dougherty v. Transit Co., 128 Mo. 33, 30 S. W. 317; Barth v. Railroad, 142 Mo. l. c. 555, 44 S. W. 778; Joyce v. Railroad, supra.] It is unnecessary to add that a demurrer could not be predicated on incompetent evidence because uncontradicted, and even as to such incompetent evidence, it was oral. Its truth was for the jury and the court could not direct a verdict on account of such evidence, especially when such evidence was the opinion of experts. [Ellis v. Railroad, 89 Mo. App. 241; Gannon v. Laclede Gaslight Co., 145 Mo. 502, 46 S. W. 968, 47 S. W. 907.] Y. Another assignment is that the court erred in giving instructions numbered two, three and four and that the same were in irreconcilable conflict with those numbered six, seven and eight given for the defendant. Upon a comparison of all the instructions given in the case, their harmony is apparent. They permitted the jury to consider all the business done at the station of Goodman which was connected with that station, they only excluded the business not connected with the station and they follow approved forms and are within the rules hereinbefore stated. YI. In this case, it was justly assumed that the horse having been injured at a place where the defendant company was required to fence, the place of killing, in the absence of evidence to the contrary, is presumed to have been the place of entering. [Ellis v. Railroad, supra; Pearson v. Railroad, 33 Mo. App. 543; Adams v. Railroad, 136 Mo. App. 157, 116 S. W. 1119; Worley v. Railroad, 135 Mo. App. 461, 115 S. W. 1039. We find no substantial error in this record, and the judgment, being for the right party, is affirmed. All concur.