Toledo, St. Louis & Kansas City Railroad v. Franklin

Mr. Justice Magruder delivered the opinion of the court: The first section of the act of the legislature of Illinois in relation to fencing and operating railroads, approved March 31, 1874, provides : “That every railroad' corporation shall, within six months after any part of its line is open for use, erect and thereafter maintain fences on both sides of its road, or so much thereof as is open for use, suitable and sufficient to prevent cattle, horses, sheep, hogs or other stock from getting on such railroad, except at the crossings of public roads and highways, and within such portion of cities and incorporated towns and villages as are or may be hereafter laid out and platted into lots and blocks,” etc. (2 Starr & Cur. Stat. p. 1927). If stock is killed by a railroad company at a place where the law does not require the company to fence its road, the party seeking a recovery must prove that such killing was caused through the negligence of the railroad company. But where stock is killed by a railroad company at a place where the statute requires the road to be fenced and where it has not been fenced, the railroad company will be liable for all damages sustained by such killing, regardless of whether the stock was killed through the negligence of the company or not. (Illinois Central Railroad Co. v. Bull, 72 Ill. 537). The negligence here charged against the appellant company, in order to make it liable for the value of the horse killed, is its failure to perform the duty imposed upon it by the foregoing statute. It is admitted, that the portion of appellant’s road, which crosses the bridge and runs up to the eastern corporation line of Ramsey, is its main track and is not within the limits of any incorporated town or village. But appellant claims, that it was not obliged to fence its track, at the point outside of the corporate limits where the horse went upon the track, for two reasons, first, because it required the use of the track for switching purposes and for the proper handling of its trains, and, second, because a cattle-guard, if placed on the main track at the intersection of cross fences with the track, would endanger the safety of its employees. The chief error assigned is, that the trial court refused to give certain instructions asked by the company to the effect, that the existence of the reasons thus indicated, if established by the evidence, would be a sufficient excuse for the failure of the company to fence its tracks at the point designated, although the express terms of the statute required it to do so. We have held, that the foregoing statute was not intended to apply to public stations or depot grounds, even though such stations or depot grounds might not be within the limits of a village, town or city or at a highway crossing, and for the reason that the convenience of the public requires the station and depot grounds to be open. The accommodation of those traveling upon the railroad or transacting business with the company makes it" necessary that there should at all reasonable times be a ready and convenient means of access to the stations and depots of the company. “To require those places to be fenced would cause delay and inconvenience to the public, and detract from the public character of railways.” (Chicago, Burlington and Quincy Railroad Co. v. Hans, 111 Ill. 114). But it has never been held in this State that the convenience of the railroad company furnishes any justification for its failure to comply with the plain requirement of the statute. On the contrary in Chicago, Burlington and Quincy Railroad Co. v. Hans, supra, we said (p. 118): “The statute, by its terms,' relates to the road or tracks of the railroad. It ought not to be construed so as to embrace that which is not embraced in the statute, and depots and stations are surely not embraced in its terms. True, there is a road or track at the station, but the main feature of the place is not the track. The statute no doubt may embrace tracks other than the main track. Side-tracks," not at stations or depots, and such parts of side-tracks as do not constitute part of the depot yard, may well be held to be within the statute.” Here, the failure to fence is sought to be justified upon the ground, that certain side-tracks, which are not at the station or depot and do not constitute a part of the depot yard, and which are beyond the corporate limits of the town, can be more conveniently and safely used if unfenced than if fences were erected. Such a consideration furnishes no valid reason why the statute should not be obeyed. In Toledo, St. Louis and Kansas City Railroad Co. v. Thompson, 48 Ill. App. 36, it was assigned as error, that the court'refused to instruct the jury that the safety of its employees was a sufficient ground of exemption from the duty imposed upon the railroad company by the foregoing statute; and it was there held, that the instruction was properly refused, because it “drew from the supposed convenience of the company a conclusion of law which could properly follow only from that of the public-.” In its opinion delivered upon the decision of this case, the Appellate Court said: “Did the facts in evidence show this unfenced and unprotected track to be one of the parts of its road it is not required to fence? It does not appear that the freight or passenger traffic of Ramsey was large. No elevators or warehouses were there to indicate a place at which considerable quantities of grain were received and shipped. There was a space of 1900 feet in length from the depot within the town limits that could be used for the proper handling of appellant’s trains at that place,—amply sufficient for the transaction of its business with the public without using any part of its main track outside those limits. Those and other facts in evidence justify the verdict. The refused instructions requested were properly refused, and the special interrogatories requested, called for findings of evidentiary and not of ultimate facts, and were also properly refused.” We approve of the portion of the opinion of the Appellate Court thus quoted and adopt it as a part of this opinion. The judgment of the Appellate Court is affirmed. Judgment affirmed.