The following opinion on rehearing was filed December 7, 1906. Reversed:
Letton, J.In the former opinion in this case, ante, p. 793, it was held: “Where a railroad company outside of the limits of a city, town or village has established a flag station, with platform, elevator, office and scales, coal house, corn-cribs, etc., for public use, it is not bound, under the provisions of the statute requiring railroads to be fenced, to fence its road in such a manner as to prevent the public from having proper access to its station grounds.” It was further held: “The failure to fence is excusable, however, only to an extent sufficient to afford the public and the railroad company necessary facilities for transacting the business reasonably to be expected at this locality.” While we still adhere to the doctrines thus laid down, we are convinced that some of the language used in the discussion in the former opinion perhaps conveyed an erroneous impression, and in some respects failed to give due *800prominence to the necessity of affording the railroad company proper facilities for the safe transaction of the business reasonably to be expected. If it were necessary for the public convenience and necessary to the proper operation of the railroad, carrying on the business with due regard and care for the safety of employees, that the track should be left unfenced at the point where the hogs came upon the right of way, then the railroad company would not be liable. The safety of the employees of the railroad in carrying on its necessary operations in the vicinity of the station must be considered, as well as the necessity of the public for access to the station grounds. It is contended by the defendant that as a matter of law a railroad company is excused from fencing its station grounds as far as its switching tracks extend in either direction, on account of the danger to employees which would arise from placing cattle-guards at any point where the men would be obliged to walk across them for the necessary operations of switching. It is a matter of common knowledge that, in the present stage of the evolution and development of railroad transportation, it has been thought advisable in many places in the state to construct long switching tracks or passing tracks, extending in many cases far beyond the limits of cities, villages or station grounds, and apparently designed eventually to become parts of a double track system. Carried to its full length, the defendant’s contention would excuse a railroad company from failing to fence as far as these tracks extend, even though only used occasionaly; but this, we think, would be giving an improper construction to the statute. Russell v. Hannibal & St. J. R. Co., 26 Mo. App. 368; Chouteau v. Hannibal & St. J. R. Co., 28 Mo. App. 556. Under the statute the company must fence outside of the limits of cities and villages, except where excused by surrounding circumstances. If it plainly appear from the evidence that the locality is one where the proper conduct of the business, considering both public convenience and the operation of the railroad with regard to the safety of em*801ployees, requires that it be left unfenced, then the court may so declare; but where the question is one of doubt it is for the jury. Cole v. Duluth, S. S. & A. R. Co., 104 Wis. 460, 80 N. W. 736. A point at which the company maintains merely a platform and a switch which is only used a few times each year cannot, in reason, be treated the same as another where a station is maintained, and where elevators, scales and corn-cribs for public convenience are found, and where freight is loaded and unloaded frequently. The fact that at a given point cars are occasionally loaded and unloaded and switched would not alone excuse a railroad company from fencing at that point; but, if the evidence showed that the public convenience and the reasonably safe operation of the defendant's busi- . ness would be unduly hindered and interfered with by the inclosure of the tracks, then it would be excused from fencing.- If the evidence should show that danger to employees was but little to be apprehended at a given point with the exercise of proper care and caution upon their part, then the fact that that point Avas used occasionally to receive and discharge freight or passengers Avould not ex- ■ cuse the company from fencing, except to the extent that the public conAwnience required, it, and if the public could be served by inclosing all but a small portion of the track, then so far only Avould the company be execused. Toledo, St. L. & K. C. R. Co. v. Franklin, 159 Ill. 99; Toledo, St. L. & K. C. R. Co. v. Cupp, 9 Ind. App. 244; Railroad Co. v. Newbrander, 40 Ohio St. 15.
The statute requires the railroad company to erect and maintain fences on the sides of the railroad “suitable and amply sufficient to prevent cattle, horses, sheep, and hogs from getting on the said railroad,” except at the crossings of public roads and highways, and within the limits of toAvns, cities and villages, and to construct and maintain at all road crossings cattle-guards suitable and sufficient for the same purpose. 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 *802access to the tracks at all points except at public crossings. The defendant’s answer presents the issue that the locality was a part of its depot grounds, and that public necessity and proper regard for the safe operation of its business required that it be left unfenced. This issue was submitted to the jury by an instruction based upon this allegation in the answer. The amount of switching done at this point was shown to be very small, and the evidence as to the danger to employees if the railroad had been fenced is very meager and unsatisfactory. The only witness as to this was the section foreman at that point, and we are convinced that, upon the issue as to whether the safety of its employees required the locality to be unfenced, the defendant failed to establish its defense, and the jury were warranted in finding against it upon that issue.
There remains then the question whether the public convenience excused the railroad company from inclosing its tracks at the point where the hogs came upon the right of way. They were killed close to the elevator on the south side of the track, and apparently had passed from the rye field directly north across the tracks to the vicinity of the elevator. If, as we now hold, the statute requires the complete inclosure of the track with fences and cattle-guards at points where the company is required to fence, then an inclosure of that portion of the grounds would exclude the public from the shipping and receiving facilities afforded by the elevator, coal house and corn-cribs, and thus largely deprive it of the benefits afforded by the railway station. This the company is not compelled to do, and hence was excused from inclosing its tracks at that point. The doctrine of the former opinion is sound in the main, but it failed to give due weight to the necessity of .complete inclosure by fences and cattle-guards at points where a railroad company is required to fence. The conclusion reached and the fourth paragraph of the syllabus to the former opinion are therefore set aside, and the judgment of the district court is
Reversed,