This is an action for damages brought under section 809, Revised Statutes, 1879, for killing *653plaintiff’s cow at a point on defendant’s railroad where, it is alleged, a duty rested on defendant to fence its tracks, and which duty had not been performed.
The evidence discloses that the cow entered upon the. track of the railroad, and was killed near the western corporate limits of the town of Lawson. The jury evidently found that such entry was just outside the town limits. The railroad passes through the town east and west, with a depot located about six or seven hundred feet east of the western town limits. A side track is constructed along from the depot east and west, connecting by switches with the main track at either end. The right of way of the railroad is fenced to within twenty-eight feet of the western town limit where there is a cattle guard, which is about one hundred and thirty-live to one hundred and forty feet west from the west end of the switch. This space from the cattle-guard on the west to the cattle-guard east of the depot is left open and unfenced. Plaintiff ’ s contention is that the cow entered upon the space of twenty-eight feet outside the town limits (and there is evidence tending so to show), and that as it was not fenced the railroad company is liable in double damages for the injury committed. Defendant’s position is that it was not in duty bound to fence this space, since in order to transact its business at the depot and protect its employes in handling trains at the switch the cattle-guard and fencing could not safely be permitted nearer to the depot and switch grounds than as iocated.
This defense of the railroad company was clearly and uncontrovertibly established by the evidence, and we must hold that no case was made against the defendant, for the same reasons as heretofore declared by this court in a controversy “on all fours” with the case now under review. Pearson v. Railroad, 33 Mo. App. 546. By the evidence adduced at the trial of this cause, it remains uncontradicted, that a placing the cattle-guard and fencing nearer to the head of the switch than *654as constructed would endanger the lives of the employes In switching trains about the depot grounds at Lawson. As said in Pearson v. Railroad, supra: — “If a railroad company wilfully places that in its track which will unduly hazard the life and limb of its employe in the performance of the service required of him, it is liable to such servant for an injury thereby occasioned. This being true, it is altogether out of the question to hold such company liable in another direction for not doing so.”
The learned judge who tried this case very clearly submitted instructions covering this theory of the defense, and if the evidence had not been entirely one way we should not disturb the judgment. But there is no conflict in the evidence. A clear defense was made out, without a scintilla of testimony against it, and the court should have declared to the jury that the plaintiff could not recover.
Judgment reversed;
all concur.