ON MOTION FOR REHEARING. On motion for rehearing appellant's counsel make a vigorous attack on instruction No. 3 given for plaintiff. This instruction told the jury that if they should find that the switch at or near where the animal was killed was maintained for the exclusive accommodation of one industry then such switch was not a station within the meaning of the law so as to relieve the defendant of the duty to fence its track even though they should further find that trains sometimes stopped there to receive and discharge passengers and freight.
This instruction links together the definition of a station and the use of a switch in connection with a station and standing alone in a case where the question of a station or no station and the use of a switch in connection therewith was at issue would be erroneous. It could not, however, have misled the jury in this case. The other instructions placed the burden on plaintiff to show that the animal entered on the track and was killed at a place where the defendant was required to fence, that is, where the track passed through, along or adjoining, inclosed or cultivated fields or uninclosed lands and not at a crossing of any public road or other road and not within the limits of any incorporated town, city or village. When the plaintiff proved these facts he made a prima facie case. If the nearness of a public station or a public switch made it necessary to leave the track unfenced at the point where the animal entered on the track that was matter of defense and the burden on the defendant to establish it. [Cox v. A.T. S.F. Ry. Co., 128 Mo. 362, 31 S.W. 3.]
We find no evidence in this case to warrant the submission of these defenses to the jury, hence defendant could not have been injured by Instruction No. 3.
The motion for rehearing will be overruled. *Page 496