Chicago, B. & Q. R. v. Hogan , 30 Neb. 686 ( 1890 )

Norval, J.

This case was reversed on a former hearing and a rehearing granted. We have again considered the questions involved and found no reason to change the views expressed in the former opinion prepared by Judge Maxwell, that, under the agreed statement .of facts, the railroad company was not required to fence its right of way at the point where the plaintiff’s horse was killed, and, as the animal was killed without the fault or negligence of the company’s employes, the defendant was not liable for the loss. The greater portion of the defendant’s depot and station grounds at the city of Lincoln are within the corporate limits; the remainder of such grounds, while not within the corporate limits, extends along a laid out and platted addition to Lincoln, known as “ West Side Addition.” This addition had several houses thereon, which were occupied by owners and tenants. Numerous tracks had been constructed through said depot grounds, which had been used by the company for many years, and which tracks and depot grounds were necessary for the proper transaction of its business as a common carrier. The horse entered upon the defendant’s right of way and was killed at a point within that part of its depot or station grounds which extend outside of the city limits. No fence had been erected on either side of the defendant’s tracks at that point.

Sec. 1, art. 1, ch. 72, Comp. Stats., expressly exempts a railroad company from fencing its right of way within the limits of a city, town, or village. To have fenced, that part of the depot grounds not within the city limits, would have required the construction of cattle guards and wing fences across these grounds. It is stipulated by the parties that it would be inconvenient and unsafe to employes of the road if cattle guards and fences were erected there. Such guards within station grounds could not be otherwise than exceedingly dangerous to those whose duty it is to attend to the switching of cars. This work of necessity is done at stations, and freight cars must be coupled and uncoupled by a person standing on the ground. To perform such labor with cattle guards constructed across the tracks, within station grounds, would not only be perilous to the life and limb of the employes, but would greatly interfere with the proper discharge of its duties as a carrier. It is not believed that the legislature contemplated or intended that a railroad company should fence that part of its station grounds extending outside of the limits of a city, town, or village, when such grounds are necessary for the proper transaction of its business as a common carrier. The conclusion we have reached is sustained by the following authorities: Davis v. B. & M. R. Co., 26 Ia., 553; Durand v. C. & N. W. R. R., Id., 559 ; L. & I. R. Co. v. Shriner, 6 Ind., 141; I. & C. C. R. Co. v. Oestel, 20 Id., 231; Railroad Co. v. Rowland, 50 Id., 349 ; C. R. & Ft. Wayne R. Co. v. Wood, 82 Id., 598; I. R. Co. v. Christy, 43 Id., 143; G. & C. R. Co. v. Griffin, 31 Ill., 303; Flint & P. M. R. Co. v. Lull, 28 Mich., 510; McGrath v. D. M. & M. R. Co., 24 N. W. Rep. [Mich.], 854; Lloyd v. Pac. R. Co., 49 Mo., 199; I. B. &. W. R. Co. v. Quick, 9 N. E. Rep., 789; C. & G. T. R. Co. v. Campbell, 11 N. W. Rep., 152. As there can be no recovery in this case, the judgment of the district court is reversed and the action

. Dismissed.

The other judges concur.