Rabidon v. Chicago & West Michigan Railway Co.

Grant, J. Plaintiff, who was five years old, passed from the- highway opposite his father’s house onto the railroad right of way, which was unfenced, caught hold of one of the box cars of a train, and was drawn under the cars and injured. Plaintiff, at the conclusion of the evidence, withdrew from the consideration of the jury all grounds of negligence except the failure to fence the right of way as provided by the statute. The defendant insisted that the portion of its right of way where the plaintiff was injured was within its station grounds or yard limits, which the law did not require it to fence. This presents the sole controversy. The court below left it to the jury to determine whether this was a necessary part of its station grounds or yard limits, and therefore exempt from the statutory duty to fence. That portion of the city of Muskegon is fairly well settled. It is laid out in streets and blocks, the distance between Hamburg and Israella streets being 264 feet. Defendant’s road runs north and south, parallel to and adjoining Ambrosia street. Plaintiff lived on the northwest lot of the ""block, on the east side of the street. Directly opposite his residence was a cooper shop, with a side track running to it; the switch being in close proximity to Israella street. Directly south of Israella street is a large manufacturing establishment. There are three side tracks, — two upon the east and one upon the west side of the main track. The main switch to these side tracks is located in close proximity to Israella street. The following facts are established : 1. The right of way. at this point is within the yard limits, as fixed by the defendant. 2. To inclose the right of way with wing fences and cattle-guards on both sides of each street would render switching and the management of trains at this point dangerous to employés. 3. Plaintiff’s own expert witness shows that “yard [392] limits are the space within which yard engines may work without receiving orders, as against other trains.” 4. The right of way at the point of the accident was within the yard limits, as thus defined. The father of the plaintiff testified: ‘ ‘ The switch engine runs up there frequently, and draws freight cars to the Monroe Manufacturing Company. It goes at irregular intervals; is likely to run up almost any time.” The chief engineer of the defendant testified as follows: ‘ ‘ It becomes necessary, in handling trains with a switching crew, to protect that crew against trains on the main line, other than the ordinary way of protecting a train on a main line outside; and a yard-limit sign is placed at a proper distance outside of the extreme limit to which the switch engines go. And the men are notified, also, of the point of the yard limit, which is at a sufficient distance outside of where switch engines have to go in doing their switching to protect them against main-line trains. That sign which indicates the yard limits is a notice to incoming trains that they are likely to meet switching engines any time after passing that limit. Switching engines are allowed to work over the track, within the yard limits, without special orders, and without the precaution o’f flagging. * * * Men have to couple and uncouple cars at those points, pass back and forth from the train to the switch; and they are quite liable to be caught in anything of the nature of a cattle-guard, and thrown down and injured, especially in the darkness.” This evidence is uncontradicted. It is clear that defendant’s employes who do the switching would be compelled to cross over these cattle-guards. Plaintiff’s counsel appear to recognize this fact, and advance the proposition that fencing does not necessarily mean wing fences and cattle-guards at highway crossings. To meet the case made by the defendant in regard to switching, and the danger from inclosing its right of way with fences and cattle-guards, they introduced one witness who had been a railroad employé; and he testified that, in his opinion, “the spot where the cooper shop is, is not a part of the depot and station grounds.” [393] It appears that the depots — passenger and freight — were nearly a mile distant. Distance from depots is not the controlling consideration in determining “depot grounds” or “yard limits,” which are synonymous terms. It is well known that in large cities these grounds extend for several miles. Neither does the question of frequent or infrequent use for switching purposes control. The question is, Are they reasonably necessary for that purpose, or liable to become so ? It is not necessary to go outside our own decisions, in determining this question. It was settled in McGrath v. Railroad Co., 57 Mich. 555. In that case the opinion was delivered by Mr. Justice Sherwood, and concurred in by the entire court. It was there said: “The existence or extent of these*grounds is-not to be determined by the continued actual use of any part thereof. When station grounds are laid out, their contemplated future use is not unfrequently of more consideration than the actual demands at the time in determining their shape and extent. The construction and operation of a new line of railroad always tends to the development of the resources of the section through which it passes, and is followed by increased population and business. This is a matter of such common observation that ordinary prudence and foresight determines such an appropriation for station purposes as shall be commensurate with such reasonably anticipated growth. When these grounds are appropriated and set apart by the company, it would be neither safe nor wise to allow their limits to be curtailed or extended by a jury in a proceeding where they collaterally come in question, as in this case, upon the mere showing that any part of the same was not in actual use at any particular time.” This was followed and approved in Grondin v. Railway Co., 100 Mich. 598; Wilder v. Railway Co., 70 Mich. 382; Rinear v. Railroad Co., Id. 620; Schneekloth v. Railway Co., 108 Mich. 1. Moreover, switch grounds, as well as stations and freight depots, are exempt from constructing fences. 3 Elliott, Railroads, § 1194. It is there said: [394] “ The exemption of switch grounds is founded on the danger to employés which would necessarily result were the tracks fenced. The safety of the employés at points where they almost cpntinually pass up and down the track in the performance of their duties is far more important than would be the safety afforded to animals and property from the erection of fences at such tracks. ” See, also, Flint, etc., R. Co. v. Lull, 28 Mich. 510. The opinion of plaintiff’s witness was of no value. The question was confined to the spot where the cooper shop is. It did not meet or contradict the defendants evidence that switching was done there; that it was part of the yard limits, as defined by the same witness; and that fencing with wing fences and cattle-guards would be extremely dangerous. In fact, both counsel and the witness appear to have recognized the danger in thus fencing; for the attention of the witness is immediately drawn to the construction of the fence on the east side of the right of way along Ambrosia street, and particularly where the cooper shop is, and he said: “In my opinion, it would not interfere with railroad operations at all to maintain a fence on the east side of the railway right of way, and particularly where the cooper shop is. ” The proposition is seriously made that the defendant was required to construct a fence along the east side of its right of way, in front of plaintiff’s house, without wing fences or cattle-guards, as a protection to children living on the east side of the highway. The position is untenable. The statute requires no such fence. The common law imposes no duty to fence. Justice Cooley said in Maroott v. Railroad Co., 49 Mich. 99, “We have no statute requiring fences for protection against personal injuries.” If, however, such protection were contemplated, the statutory fence must be constructed, that is, one with Cattle-guards and wing fences. If a fence had been maintained along the street which would serve to keep a boy out, a few steps would have taken him around the end of the fence, to the right of way. It is absurd to say that [395] such a fence would serve as a protection. Under this record, the defendant had conclusively established that this was a part of its yard limits, and that it was exempt from fencing. We do not intend to express any opinion upon the question whether the failure to erect and maintain such a fence as the statute requires is a negligent act, as against persons who enter upon the right of way and are injured. That question is not raised by defendant, and is not before us. Judgment reversed, and new trial ordered. Long, C. J., Montgomery and Hooker, JJ., concurred with Grant, J.