Burnham v. Chicago, Burlington & Quincy Railway Co.

Epperson, C.

On its Lincoln and Denver line of road, about two miles southwest of Lincoln, the defendant maintains a station called “Burnham,” which is not an incorporated town, village or city. At this station defendant has its sheep yards; barns and pasture, where sheep in transit are unloaded and cared for. There are no general stock yards, depot buildings, elevators, corncribs or coal houses at or near this station. In the sheep yards there are at times from 20,000 to 30,000 sheep, and several hundred cars are there loaded and unloaded during.the year. This traffic averages 10 cars a day, and during the busy season a great many more; the maximum as shown by the evidence, amounting to 125 cars. The plaintiff herein owned and occupied a small tract of land in the shape of a right-angle triangle in the northwest corner of the southeast quarter of section 4, about 1,700 feet southwest of defendant’s sheep yards. The hypothenuse of plaintiff’s lot was about 10 rods long and formed the boundary line between his lot and the northerly side of defendant’s right of way. The defendant’s railway at this point runs in a northeasterly and southwesterly direction. This main track is in the center of its right of way, and 100 feet from the plaintiff’s lot. The defendant has constructed and operates a side-track on the north side of its main track for the purpose of reaching the sheep barns, and connected the same with its main track by switches, one of which is at a point about 100 feet southwest of the intersection of the railroad with the south Une of a public highway running east and west along the north side of plaintiff’s property, and is therefore 100 feet from the plaintiff’s land. About 12 years ago defendant constructed a fence along the line between its right of way and the plaintiff’s property, which was later abandoned. The plaintiff, joining' his lines of fence with the abandoned fence of the defendant, made an inclosure, and turned his horses therein. On July 5,1906, one of plaintiff’s horses escaped from the lot by breaking through the abandoned fence, got upon the defendant’s track at or near the switch, and there was struck and killed by one of defendant’s trains. The plaintiff brought this action to recover the value of the horse, alleging negligence on the part of the defendant in not fencing its right of way. Defendant admitted that its right of way was not fenced at this point, and alleged that its tracks and grounds at the place in question were not such as could be lawfully inclosed with fences and cattle-guards; that to so inclose them would greatly hinder and obstruct the operation of trains, and unnecessarily endanger the lives of its employees. Upon trial the court submitted to the jury the issue thus presented by defendant’s answer. 'This is assigned as error by the defendant on an appeal from an adverse judgment below.

The statute requires each railroad company to erect and maintain fences on the sides of its right of way sufficient to prevent cattle, horses, sheep and hogs from getting on the railroad, except at the crossings of public highways and within the limits of towns, cities and villages, and requires it to maintain cattle-guards at all road crossings sufficient to prevent cattle, horses, sheep and hogs from getting upon the railroad, and, for a neglect of this duty, the railroad company is made liable in damages for stock killed or injured thereby. A liberal construction lias been placed upon this statute in cases where the fencing of the right of way at the place of the accident would render railroad facilities inconvenient to the public or dangerous to human life. Chicago, B. & Q. R. Co. v. Hogan, 27 Neb. 801, 30 Neb. 686; Chicago, B. & Q. R. Co. v. Seveek, 72 Neb. 793, 799. Manifestly the inclosure of the right of way at stations, although not within a platted or an incorporated town, city or village would be an inconvenience to the public. For this reason, a liberal construction is given to the statute in the cases above cited. Each of the above cases pertain to the liability of the company for the killing of live stock at such stations; but they recognize, also, that the company is excused from fencing if the inclosure would necessarily render the service of employees more hazardous. The station here in controversy is not one established for the accommodation of the people in its vicinity; but it is, nevertheless, a necessary station, and one constructed for the proper care of live stock shipped over the defendant’s line of road, and is needed for the proper expedition of its business. The volume of business done here and the amount of switching probably far exceeds that of any one country station in this state. Therefore with greater reason can it be said that the railroad company should be excused from inclosing its right of way. The evidence shows that the switch in controAursy is in frequent daily use, and, although the inclosing of the right of way at the place where this SAvitch is maintained would be of no inconvenience to the public, it Avould, nevertheless, be an in-increased danger to defendant’s employees engaged in switching trains to and from the main line and sidetrack. It would be necessary for the inclosing of the right of way at this place to construct a lateral fence along the public highway and construct a cattle-guard within the rails of both the main and side-tracks at a point but 100 feet from the switch. The evidence shows that such a construction so near the switch would be an increased danger to defendants’ employees engaged in transferring cars. That such a construction at a place frequently used for switching cars is an increased danger is well known, and would be recognized as such by the courts in the absence of specific evidence. The inquiry, therefore, should be as to the use of that part of the right of way and tracks. The court should ascertain whether or not the manipulation of trains or cars'at the locus in quo is frequent and necessary. If this is admitted or proved, it necessarily follows that the establishment of wing-fences and cattle-guards would be an additional danger to trainmen. Under such circumstances, a railroad company is not only excused from inclosing its right of way, but it is its duty not to do so. The danger to live stock should not he obviated, if by so doing human life is endangered.

Our decision depends upon whether or not it was for the jury to say that the defendant was guilty of wrongdoing in its failure to inclose its right of way. In Chicago, B. & Q. R. Co. v. Seveek, 72 Neb. 799, it is said: “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 the employees, 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.” In Grondin v. Duluth, S. S. & A. R. Co., 100 Mich. 598, it was held as a matter of law “that at least as much of the track and grounds outside of the switches as is required and is in actual use for reaching these side-tracks is a part of the station grounds, to which the statutory requirement to fence does not apply.” In Rabidon v. Chicago & W. M. R. Co., 115 Mich. 390, it was held that the defendant conclusively established that the place was within the yard limits, and exempt from fencing. The judgment of the lower court was reversed because the case was submitted to the jury. That case is very similar to the one at bar so far as it relates to the use by the railroad company of the switch in controversy. In Cole v. Duluth, S. S. & A. R. Co., 104 Wis. 460, it is said: “Where the grounds left unfenced and treated by a railway company as depot grounds are unusually extensive and the locus in quo is outside of and beyond the switches and side-tracks, and not used as a place of access by the public or ] either for freight or passengers, and only for the or standing of trains, the question whether it is m for and used as depot grounds is properly for tb

Adhering to the rule last announced, this cided Rosenberg v. Chicago, B. & Q. R. Co., 77 It was there held that the trial court erred in ing the case from the jury. That case m tinguished from this, for it appears that ther road company had not fenced within a quarter of a mile of the switch limits, and about half a mile from the place where the animals were killed. The facts in that case were such that reasonable minds might differ as to the defendant’s obligation to inclose the right of waj at the place where the cattle entered the right of way. In the case at bar it does not seem possible that reasonable minds can differ as to the defendants’ duty in this regard. In attending to the duties of switching, trainmen are required to step between the cars along the train at and near the switch, and are frequently required to be in close proximity to or even jumping to and from moving trains, or to ride upon the sides thereof. In the performance of these duties both night and day, the existence of cattle-guards and fences is a continuous increased danger, which it is the duty of the railroad company to avoid. In 3 Elliott, Railroads (2d ed.), sec. 1194, it is said: “The exemption of switch grounds is founded on the danger to employees which would necessarily result were the tracks fenced. The safety of the employees at points where they almost continually 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.” In the case at bar it appears that not only, would trainmen be endangered, but, also, that shippers accompanying their sheep would probably encounter the same dangers as do the trainmen in and about the locus in quo. Undoubtedly the jury should be permitted to decide the reasonableness nreasonableness of such excuses pleaded by a railompany, where the evidence leaves a doubt as to erous character of such improvements, or in any re the place in controversy is near a switch of 1 use only, or at a siding used infrequently, and centers of active commercial industry. But the character of the evidence in this case. The pontroversy is not one established for the oee of the defendant in permitting its trains to pass, but one which is in continuous daily use of the company in. the transferring of sheep to and from its yards, and, under these circumstances, the facts being established by uncontradicted evidence, it was the duty of the court to withdraw the consideration of this question from the jury, and to direct a verdict for the defendant as requested.

We recommend that the judgment of the district court be reversed and this cause remanded for further proceedings.

Dtjffie and Good, CC., concur.

By the Court: For the reasons given in the foregoing opinion, the judgment of the district court is reversed and this cause remanded for further proceedings.

. Reversed.

Rose and Dean, JJ., not sitting.