Opinion
The question here is whether the railroad company was required to maintain a fence at the point where the plaintiff’s horses came upon the track. According to the proof the railroad runs along the south side of an unincorporated village. The depot building, water tank, stock pens, grain elevators and switches are all situated within a space that is unfenced. According to the uncontradicted proof so much of that space as lies between G-riggs street and Main street extended across the railroad, which includes the place where the animals came on the track, is necessarily required for the purposes of transacting the business of the road in receiving and discharging freight and in switching cars. The testimony is not conflicting on this point nor on the point that a cattle guard with wing fences within this space would seriously endanger the employes of the company in doing the switching work constantly required there.
In the case of C., B. & Q. R. R. Co. v. Hans, 111 Ill. 114, it was held that the company was not bound to fence so much of its track at stations not within incorporated municipalities as is required to be open for the convenience of the public in dealing with the road. This ruling has been followed by the Appellate Courts in many reported cases. T., St. L. & K. C. Ry. v. Franklin, 53 Ill. App. 632, and cases cited. The controlling consideration as stated in those cases, is the necessity arising from the relations between the company and the public, and the right of the latter to have convenient access to the road at stations.
In the case of C. & E. I. R. R. Co. v. Guertin, 115 Ill. 466, it was sought to show that the safety of employes required the space to be left open and error was assigned upon the exclusion of offered proof to that effect, but the court found it unnecessary to pass upon the question and it was not directly decided. In E. & T. R. R. Co. v. Willis, 93 Ind. 507, the point was directly before the court and it was held that under such circumstances a fence was not required. It was said to be well settled law that a railroad company is not required to fence its road when such fence interferes with its own rights in operating its road or in transacting its business, nor when the rights of the public in traveling or doing business with the company are interfered with, and that if the company is not required to fence when its rights in running trains or transacting its business are thereby infringed there is greater reason for holding that it should not be required to fence where the lives and limbs of employes would be thereby endangered. We are not prepared to hold that the mere inconvenience of the company in operating its road or in performing its immediate duties to the public would excuse it from building a fence required by the statute, or that such consideration would warrant a construction of the statute to that effect. It does, however, seem clear that in ascertaining what portion of its grounds at stations should be left open in order to enable it to properly perform its duty to the public and to enable the public to fully enjoy the facilities for which the road is designed, it is proper to consider what the company must-do in that regard in the course of receiving and discharging freight and in handling and switching cars. Such work is constantly necessary and as is well known is, at best, hazardous to employes. This hazard is substantially increased by the presence of cattle guards. It is therefore but reasonable that in ascertaining what space should be left open the safety of employes must be taken into account. When the duty of the company to the public is being considered there is also involved a duty it owes to employes to use reasonable care in providing them with safe and sufficient means and appliances for doing their appointed work, and this can not be disregarded in determining the point under consideration. Therefore in arranging the switching yards the company may properly keep in view the safety of the employes, and this is an element to be regarded in ascertaining how much space may be left open in order that the company may duly serve the public.
Proof on this point went to the jury without objection in the case at bar, and was without contradiction, but the court struck out all reference to it in the instructions.
We feel constrained to hold that, as the record appears, the verdict is clearly opposed to the evidence, and probably the jury did not apprehend what weight of importance, if any, should be given to the element of safety in locating cattle guards and wing fences.
The judgment will be reversed and the cause remanded.