Toledo, St. Louis & Kansas City Railroad v. Franklin

Mr. Justice Green

delivered the opinion of the Court.

The horse got upon defendant’s track at a point beyond the corporate limits. There was no fence or cattle-guard to prevent the animal from passing along the right of way east, over the east line of the town, and getting upon defendant’s track as it did. It was proved, and is not denied, that defendant failed to erect and mantain fences on the sides of its main track “outside of corporate limits, suitable and sufficient to prevent stock from getting on its track outside those limits, and if it had performed this statutory duty by erecting side fences, and fences from there to the track, with suitable cattle-guard there, plaintiff’s horse could not have strayed upon the track or bridge, and the accident could not have occurred.

The negligence relied on to create liability for the value of the horse, is defendant’s failure to perform this statutory duty.

Appellant contends that although that portion of its road across the bridge and up to the east corporation line of Ramsey is its main track, and is not within the limits of an incorporated town or village, yet it is exempted from the duty of fencing the same, notwithstanding the requirement of the statute, because it needs the use of that track for switching purposes, or proper handling of its trains, and a cattle-guard, if placed in this main track at the intersection of cross fences with the track, would jeopardize the safety of employes.

This court has hold in C., C., C. & St. L. R. R. v. Roper, 47 Ill. App. 320, where a cow was killed within the switch limits, at a station in an unincorporated town, and the cow came on the track where switch yard was kept open for the public convenience, in receiving and discharging freight, and necessary to be kept open for that purpose, defendant was not required to fence its track there, and incurred no liability for failing so to do. Citing C. B. & Q. v. Hans, 111 Ill. 114; L. E. & St. L. R. Co. v. Scott, 34 Ill. App. 635; C., C., C. & St. L. R. R. v. Asbury, 43 Ibid. 92; Saur v. Myers, 43 Ibid. 251; I. C. R. R. Co. v. Kincey, 42 Ill. App. 390. It was held not necessary to fence track within what might be called depot ground, that is, such portion as was necessary for the switches and other purposes connected with the depot.

In T., St. L. & K. C. R. R. Co. v. Thompson, 48 Ill. App. 36, a case in which the same question of law was presented as in this case, and the facts were sufficiently similar to make the decision in point hore, it was held defendant was not bound to fence its depot grounds and the tracks and switches adjacent thereto, so far as their proper use and convenience requires that they should be left open for the transaction of its business with the public. And it was further held that the jury were properly left to determine from the evidence whether such use and convenience did require they should be left open. The jury found against the railroad company, and the judgment entered and this finding was affirmed.

The law as announced in the case cited, is, that railroad corporations in this State must fence both sides of their road outside of the limits of incorporated towns or villages, with suitable and sufficient fences to prevent stock from getting on the railroad track, and where a cattle-guard is necessary, as .in this case, to keep animals off, such cattle-guard is to be deemed an essential part of a suitable and sufficient fence. P. D. & E. R. R. Co. v. Schiller, 12 Ill. App. 443. The exception to this general rule, relieving the company of the statutory duty even in unincorporated towns and other places outside of town limits, is stated in the cases we have referred to. Did the facts in evidence show this unfenced and unprotected track of appellant to be one of the parts of its road it is not required to fence ? It does not appear that the freight or passenger traffic of Eamsey was large. Mo elevators or warehouses were there to indicate a place at which considerable quantities of grain were received and shipped. There was a space of 1,900 feet in length from the depot, within the town limits, that could be used for the proper handling of appellant’s trains at that place, amply sufficient for the transaction of its business with the public, without using any part of its main track outside those limits.

Those and other facts in evidence justify the verdict.

The refused instructions requested were properly refused, and the special interrogatories requested called for findings of evidentiary and not of ultimate facts, and were also properly refused.

The judgment is affirmed.