Bejma v. Chicago & Milwaukee Electric Railroad

Tbe following opinions were filed November 17, 1914: ViNJE, J. Tbe jury found that plaintiff traveled a well-beaten path which connected with Eirst avenue about twenty feet south of the intersection of the defendant’s right of way with the south line of the right of way of the Chicago &. Northwestern Railway, thence northeasterly to and upon the right of way of the latter road across the trestle and some distance beyond, when he again entered the right of way of the defendant, proceeded up the embanlonent and south to the place where the fire was, and from thence to the track, where he jumped onto the moving train and rode for a short distance and was injured in jumping off or immediately thereafter. They also found that defendant’s failure to fence where plaintiff first entered its right of way occasioned in whole or in part his injury, and that it was also occasioned in whole or in part by defendant’s failure to fence where he entered its right of way the second time. Eor we must assume that in finding numbered 4 they found something additional to what was contained in finding numbered 3, and that such additional fact was that the failure to fence at the place of the second entry occasioned in whole or in part plaintiff’s injury. They had already so found as to the failure to fence at the point of first entry. The court in its charge to them speaks of the two entries made by the plaintiff, and it is a fact, so conceded by counsel for plaintiff in his brief and so found by the jury, that after plaintiff entered defendant’s right of way he left it and went for some distance upon the right of way of the Chicago & Northwestern Railway, and then a second time entered the defendant’s right of way and remained thereon till he was injured. The question, therefore, arises whether — 532 — or not under the facts found and the evidence in this case there is any support for the finding of the jury that plaintiff’s injury was occasioned in whole or in part by his first entry upon defendant’s right of way. It is doubtful if in any case where there are two separate entries at different places upon a right of way by the same individual the first entry can be said to have occasioned in whole or in part the injury sustained by reason of remaining' on the right of way after the second entry. In this case it is quite clear that the first entry had no part in causing the injury, for plaintiff said he was going to a pond on the east side of defendant’s right of way some distance south of the trestle, and that he walked north for the purpose of crossing under the trestle; that as he came to the east side he saw some boys playing around a fire on defendant’s right of way,, and so he re-entered the right of way of the defendant and proceeded to the place of the fire, and later went upon the track and was hurt. No harm came to him by reason of his first entry. Assuming that a right of way is in all places a zone of danger, he had passed out of defendant’s zone of danger when he entered that of the Chicago & Northwestern Railway right of way. Had he not re-entered he would not have been hurt by defendant. ' Under the evidence in this case plaintiff would have-made the second entry even if he had not made the first. He wanted to cross under the trestle. He would undoubtedly have gone twenty feet further north on Eirst avenue to do so had there been a fence at the place of the first entry. And had he gone north on Eirst avenue and then to the east side of the trestle along the right of way of the Chicago & Northwestern Railway, he would have entered defendant’s right of way just as he did if he wanted to go to play with the boys at the fire.. So under the facts of the case the first entry has no causal connection with his injury. Suppose he had entered defendant’s right of way by climbing a legal fence, had left it again, and then had entered at a different place where' — 533 — there was no fence but where one was required by the statute. Could it reasonably be claimed that a recovery could be defeated by the fact that he had first entered where there was a legal fence ? It 'seems not. The converse of the proposition is equally true as applied to the facts in this case. And it must be so at least in every case where the second entry would be made independent of the first entry. This brings us to the question of whether or not it was defendant’s duty to fence where the second entry was made by plaintiff, namely, on the line of intersection between defendant’s right of way and the south side of the right of way of the Chicago & Northwestern Railway. It may be urged that the right of way of the Chicago & Northwestern Railway is also the right of way of the defendant within the lines of their intersection. Whatever view might be taken of that 'proposition in a case of a grade crossing, we think it quite clear that where one road crosses another by an overhead trestle the elevated road exercises no control over the surfade of the right of way of the lower road-except such as is necessary for the support of its own roadbed, and that in law as well as fact there are two separate rights of way within their lines of intersection, the one above the other, each, so far as the fencing statute is concerned, being independent of the other. The statute (sec. 1810) requires that— “Every railroad corporation operating any railroad shall erect and maintain on both sides of any portion of its road (depot grounds excepted) good and sufficient fences . . . and shall construct and maintain cattle-guards at all highway crossings and connect their fences therewith to prevent cattle and other domestic animals from going on such railroad;-provided, that the provisions of this section requiring cattle-guards shall not apply to any crossing located in a city or incorporated village.” Independent of statute there was no duty to fence. The duty, therefore, is coextensive with the statute and ends where the statute ends. It will be observed that our statute, unlike — 534 — that of Kansas which requires the railroad to be inclosed with good and lawful fences (sec. 7005,. Gen. Stats. 1909), or that of Indiana which requires a railroad to be securely fenced in (sec. 5442, Burns’ Ann. Stats. 1914), specifies in detail where fences shall be built and maintained. They shall be erected on both sides of any portion of its road, depot grounds excepted. There shall be wing fences to connect the side fences with cattle-guards at highway crossings except in cities and incorporated villages, and that is all. When a railroad has erected and maintained lawful fences where the statute says it shall erect and maintain them, it has discharged the duty placed upon it by the statute. Through no stretch of language can a fence across the right of way of a railroad at the foot of an embankment twenty-seven feet high on which the track is laid and supported by a trestle of equal height connecting it with the embankment on each side of the right of way of an intersecting road on the surface of the ground, be said to be a fence on the side of the road using the elevated trestle. It is also véry doubtful if' the term “highway crossing” used in the statute includes the intersection of two railroads. But if it does there would be no duty on the part of the defendant to maintain cattle-guards and wing fences at the place in question, even if the crossings were at grade, for it is within the limits of a city, where the statute does not require them. But a lack of duty on the part of the defendant to fence the locus in quo does not mean the absence of a fence there. It is evident that the intersection of the south side of the right of way of the Chicago & Northwestern Railway with that of the defendant constitutes a side of the road of the Chicago & Northwestern Railway, and the statute requires the latter to fence both sides of its road except depot grounds. Had the Chicago & Northwestern Railway performed its statutory duty there would have been a fence where plaintiff last entered defendant’s right of way. If the statute is complied with by two intersecting railroads on grade, both — 535 — roads at the point of intersection will be completely fenced in, and that would be so in a crossing like the present, so far as the railroad crossing alone is concerned. The statutory duty to fence cannot be shifted by the courts from one road to another. It must rest where the statute has placed it. Jones v. Milwaukee E. R. & L. Co. 147 Wis. 427, 133 N. W. 636. And since it is evident the statute did not aim to provide for a complete exclusion from the track of animals and persons everywhere, but has specified in detail where fences should be erected and maintained, the court cannot by construction require them to be built elsewhere on the ground that they are needed there as much as where they are provided for by statute. To do so would be to enact and not to construe a law. In so holding we do not forget what was said in the cáse of Ulicke v. C. & N. W. R. Co. 152 Wis. 236, 139 N. W. 189, to the effect that the fencing statute was enacted for the purpose of protecting life and limb, and should receive a construction to accomplish that purpose whenever fairly consistent with the language of the act. Such undoubtedly is its purpose and such undoubtedly is the construction that should be given it wherever there is room for construction. But to construe the meaning of a statute in case of .ambiguity or doubt is one thing; to add to the requirements of one where there is no doubt or ambiguity is quite another thing, and is outside the judicial field. The following cases are specially relied upon by plaintiff to sustain defendant’s duty to fence at the locus in quo: Chicago, B. & Q. R. Co. v. Sevcek, 12 Neb. 793, 199, 101 N. W. 981, 110 N. W. 639; Union Pac. R. Co. v. Harris, 28 Kan. 206; and Ill. Cent. R. Co. v. Davidson, 125 Ill. App. 420. In the Nebraska case the sole question was whether a certain place where hogs came upon the track constituted depot grounds so as to relieve the railroad company from the duty of fencing. The statute required the railroad company to erect and maintain fences on the sides of the railroad “suit — 536 — able and amply sufficient to prevent cattle, horses, sheep, and hogs from getting on said railroadand the court upon the rehearing said: “The intention of the statute seems to be to require the complete inclosure of the railroad track by means of fences and cattle-guards so as to prevent access t'o the track at all points except public crossings.” But this language was used in reference to the question under consideration, which was the duty to fence the sides of the track at a particular point, and it held there was no such duty because the place constituted depot grounds or a place where the public had a right of access to the track, though the statute made no exceptions in the case of depot grounds. The court ex necessitate rei interpolated the exception. In the Kansas case it was held that under a statute requiring the railroad track to be inclosed by good and lawful fences it must protect the track at highway crossings by cattle-guards and wing fences connecting them with the side fences, because the court stated that the track could not be said to be inclosed by the erection of side fences only. Our statute expressly provides for what the court construed the Kansas statute to require. The only point decided in the Illinois case was that its statute requiring railway companies to build wing fences and cattle-guards at all road crossings included railroad crossings. So these cases do not ássist the court much in the construction of our own statute as applied to the facts in this case. The same is true of the cases of Rozzelle v. H. & St. J. R. Co. 79 Mo. 349; Kelver v. N. Y., C. & St. L. R. Co. 12 N. Y. Supp. 723; and Marengo v. G. N. R. Co. 84 Minn. 397, 87 N. W. 1117, cited to the point that where two or more railways run parallel with each other at places where it is the duty of each to fence, the failure of one to do so, or its compliance with the statutory duty, does not excuse the other. Here the question is, Was the defendant required to fence the locus in quo ? If not, then its nonliability cannot be affected by the liability of others. The result reached upon the merits as applied to the present — 537 — defendant renders it unnecessary to discuss tbe other errors assigned. By the Gourt. — Judgment reversed, and cause remanded with directions to enter judgment for defendants dismissing tbe complaint upon tbe merits.