RAILROAD COM. DUTY TO REMOVE snow-storms, particularly during the months of January and February, and that it took all their available force to open and keep open their tracks for traffic. It does not appear how long this trench had been thus filled up, but presumably from PANY UNDER NO the commencement of winter; for the evidence shows SNOW FROM CAT that it is the custom of railroads in this State not to attempt to remove the accumulations of snow from the cattle-guards in the winter, but to allow them to remain until they thaw in the spring. It also appears from the evidence that it would be impracticable to keep these trenches clear of snow, except at the outlay of a very large expense; that every time they fill up it would be necessary, in order to remove the snow and ice, to take up the rails and remove some of the ties,-a job that would occupy a gang of four or five men several hours. To any one acquainted with our climate in the winter, it must be apparent that this process would necessarily have to be repeated very frequently, sometimes almost constantly, for these pits would be liable to be filled up, not only by each fresh fall of snow, but also by the drifting of the snow previously fallen, as well as by the action of passing engines and snow-ploughs. Including farm as well as highway crossings, these cattle-guards are very numerous. On this portion of defendant's road between the stations of Kilkenny and Mulford-a distance of four miles-there are eleven. The mere statement of these facts suggests to the mind of any one the magnitude and difficulty of the task of keeping all these pits or trenches clear of snow and ice during our winters. Are railroad companies required to do this under ordinary circumstances? STATUTE ONLY TLE-GUARDS. It is not decisive of this question to answer that they are bound to maintain cattle-guards in winter as well as summer. It must be remembered that railroad companies are not to be held to the liability of insurers of their fences and cattle-guards. They are only bound to exercise ordinary care and diligence to keep them in suitable repair. Does ordinary and reasonable care require them to keep or to attempt to keep these pits clear of snow and REA ice is the real question. Of course, if a legal duty is KEEPING UP CAT clearly imposed upon them by statute, mere difficulty or expense in performing it would not relieve them from complying with the law. But, in determining what constitutes ordinary or reasonable care and diligence in the performance of a duty, we must consider all the surrounding circumstances in the light of practical common-sense. The statute requiring railroads to construct and maintain fences and cattle-guards is a police regulation, the object of which is to prevent animals from getting upon the track and thus endangering their own safety, as well as that of persons travelling upon the road. At seasons other than winter, domestic animals are almost invariably allowed to run at large or in the fields, and they are at such times, almost by natural instinct, attracted to wander or pasture upon the right of way. But in our severe winters cattle must almost necessarily be kept up in stables or farm-yards, and even in the exceptional cases where they get out there is nothing to attract them upon the right of way. Hence the mischief to be apprehended from the cattle-guards becoming filled with snow and ice is very inconsiderable. CLEAR KEEPING CATTLE- On the other hand, the burden of the constant removal of this snow and ice is so difficult and expensive as to be almost impracticable. It would involve the employment of a large extra force of men along the entire line of road. The work at times would be incessant, for if every pit or trench were cleared at night it would be liable to be filled again by morning. This burden would be so great as to be disproportionate to any benefits to be derived from its performance, and not subservient to any public necessity. This is in itself, we think, an important consideration in determining whether ordinary care and reasonable diligence require its performance. Men of ordinary prudence would not ordinarily feel called upon to do a thing the expense and difficulty of doing which were so great, and out of all proportion to the benefits to be derived from its performance, and where the chance of mischief from not doing it is so remote and inconsiderable. A cattle-guard is but a part of the fence, and if ordinary diligence requires a railroad company to remove the ice and snow from a cattle-guard, it would also require them to remove snow-banks which might enable animals to pass over the top of a fence, a thing which, we apprehend, never occurred to any one as being obligatory; yet we see no difference between the two cases. TO REMOVE ICE A city is required to exercise reasonable care to keep its streets and sidewalks in a safe condition. This duty, of course, devolves upon them in winter as well as summer. Yet, in determining what constitutes such reasonable care, it has been held that it is not liable for an injury caused by a fall occasioned by a ridge of ice formed on the sidewalk by the tramping of snow, and freezing and melting until the surface becomes uneven. This was DUTY OF CITY held upon the express ground that it would be a great hardship, and involve ruinous expense, if all the multitudinous ways subject to be affected by winter storms are to be constantly watched and kept in thoroughly good condition. McKellar v. City of Detroit, 7 Am. & Eng. Corp. Cas. 57. As bearing · upon the question of what reasonable diligence requires, we think the principle of the case cited is somewhat analogous to the one at bar. We are aware that in Dunnigan v. Chicago, etc., R. R. Co., 18 Wis. 28 (the only case we have found in which this exact question has been passed upon), it was held that to permit these cattle-pits to become choked with snow, so as to enable stock to pass over them, is a failure of statutory duty. But the question does not seem to have been very fully argued, there being other and more prominent questions in the case; and the court, in their opinion, dispose of the matter very summarily, and without much consideration. Our conclusion, after considerable reflection, is that the burden of making these removals of snow is so disproportionate to any benefits to be derived from it, and the mischief liable to result from not doing it is so remote and inconsiderable, as not to constitute the basis of so expensive and extensive a charge upon railroad companies, and that under ordinary circumstances reasonable diligence does require them to do it. We say under ordinary circumstances, for the land or highway adjacent to a cattle-guard may, in exceptional or extraordinary cases, be so used, even in the winter, that ordinary care and prudence would require the removal of this ice and snow so as to prevent the passage of animals on the railroad-track. In this case no such extraordinary or exceptional circumstances existed; hence, in our opinion, no negligence on part of defendant in this case was proven. Order reversed and new trial ordered. Duty of a Railroad to Keep Fences in Repair.- See Hannibal, etc., R. R. Co. v. Rutledge, 19 Am. & Eng. R. R. Cas. 669. MCGRATH v. DETROIT, MACKINAC AND MARQUETTE R. R. Co. (Advance Case, Michigan. September 29, 1885.) Railroads are not required to fence grounds needed and actually appropriated for depot and station purposes. Where stock is injured while on the right of way through grounds appropriated and set apart for depot or station purposes, and the agents of the company are not shown to be at fault, there can be no recovery against the railroad for the stock so injured. ERROR to Marquette. E. J. Mapes for plaintiff. Ball & Hanscom for appellant. SHERWOOD, J.-At the time of the injury complained of in this case, the defendant's railroad extended from the city of Marquette to St. Ignace, in the Upper Peninsula. On the twentieth day of August, 1883, the plaintiff's cow strayed upon the road of defendant at Dollarville, and was run over upon the main track by defendant's cars, and killed. The defendant's railroad ran east and west through Dollarville station, at which there is a side track on both sides of the main track. The depot is between FACTS. the south-side track and the main track, and the freight-houses are south of the south siding. The south siding was about 1050 feet long. The side track on the north side is about 150 feet from the main track, at the widest point, and is called the "mill-siding," and is very much longer than the south siding between the switches on the north side of the mill-siding, and a little west of the depot. The American Lumber Co. have a saw-mill, which stands about 50 feet from the mill-siding, and its platform came up to the track, from which it loaded lumber upon the defendant's cars. The ground between the mill-siding and main track was mostly used by the mill company for piling slabs, loading and unloading logs, their lumber, and other freight from the cars. The mill-siding connected at the east end with the main track. Charles H. Watson was road-master for the defendant, and testified: "At the time the cow was killed the railroad company was engaged in handling freight for the mill company and other parties. The yard of the railroad company, that was used for freighting business and the business of the public, at that time extended east and west as far as the switches where the south-side track connects with the main track, and beyond. . . . The whole length of the ground was then used by the railroad company as their depot grounds and yard. The mill-siding was then built to a point about opposite the [west] culvert and switch." The sidings were all built and owned by the railroad company, and the grounds between them appear to have been used and controlled by its agents. That they were used as the depot grounds and yard of the defendant is positively testified to by the track-master, and does not seem to have been questioned or contradicted by any one. The only negligence or fault of the defendant averred in the declaration, or relied on by plaintiff for recovery, is the omission of the company to fence its right of way where the injury occurred. No exception was taken to the admission of testimony upon the trial, at the close of which counsel for the defendant requested the court to charge the jury "that the company was not required by law to fence its depot and station grounds, and that, it appearing that the place where the plaintiff's cow came on the track and was killed was within the depot and station grounds of the defendant, the plaintiff had made out no case, and the verdict must be for the defendant." The court refused so to charge, but did charge the jury that "the statute provides that every railroad company shall erect two fences on the line of its road, of the height and strength of division fences required by law, with fences and cattle-guards at the highways and street crossings sufficient to prevent CHARGE TO JURY. cattle and other animals from getting on such railroads, and until such fences, cattle-guards, etc., are constructed, GROUNDS. the railroad is liable for the destruction of any animal that gets upon the railroad by reason of the neglect to erect such fences; and No DUTY ΤΟ DEPOT the claim of plaintiff in this case is that the defendant had no fence where it should have constructed one and where the cow got upon the track, and so defendant is liable." Our supreme court has decided that this statute does not apply to station and depot grounds, because these places are required both for the necessity and convenience of the railroad and of the public, and that, therefore, it was not the intention of the legislature to require that these places should be fenced which the public convenience, and the convenience of the railroad company, require should be open. If, therefore, you find in this case that the place where this cow got upon the railroad-track was a portion or part of the station and depot grounds of the defendant, the D., M. & M. R. R. Co., at that time, then the plaintiff is not entitled to recover. If they were not a part of the station and depot grounds at that time, then it was the duty of the railroad company to fence them, to put up a fence for the protection of the public and to keep cattle off. Now, a mill or any other business carried on near a depot so as to become a part of the depot grounds, so as to be required for the convenience of such mill-owner, or owner of any such other business, would become a part of the depot grounds or station grounds, and need not necessarily be fenced. But it does not follow that the track running from the main track of the defendant to such mill, placed at a distance from the railroad-track, would absolve the company from fencing any such portion of the track. In other words, such track, run to a considerable distance, would not make that side track to the mill, or the place where the mill-owner carried on his business, a portion of the depot grounds. It must be in such proximity to it as to constitute it a part of the depot grounds. The fact that there was no fence on any other part of the road than that where this cow got on has nothing whatever to do with the case. The question is, as I have stated to you, was this place where the cow got on a portion of the depot and station grounds? If it is, the plaintiff cannot recover, and your verdict should be for the defendant; if it was not, then your verdict would be for the plaintiff for the value of the cow." The jury returned a verdict for the plaintiff, and defendant brings error. The only question in this case is whether the injury was done at such a place as the defendant was not required by law to fence. The plaintiff concedes that depot and station grounds proper, to the extent actually used for the legitimate business of the road and a public depot, are not required to be fenced. He insists, however, that Dollarville is a saw-mill station in a new and not much improved country, and, although a depot was erected and DEPOT used occasionally by others, it was used principally by the American Lumber Co., and for its accommodation; and that the grounds north of the main track were never WHAT CONSTI- LANDS. |