
    ST. LOUIS SOUTHWESTERN RY. CO. et al. v. BUICE.
    (No. 685-4238.)
    (Commission, of Appeals of Texas, Section A.
    Oct. 14, 1925.)
    1. Railroads <&wkey;44l (I) — Burden on owner of animals injured to show negligence.
    In suit for damages for stock killed or injured by railroad locomotives and cars, burden is on plaintiff to show that killing or injury was proximately caused by negligence of railway company, its agents, or employees.
    2. Railroads <&wkey;44l (6) — Burden on railroad to show no obligation to fence at place of killing stock.
    Under statute, negligence in killing or injuring stock is conclusively established by proof that railroad was not fenced at place where killing or injury occurred, unless railroad is not required or permitted by law to fence- its .track at such place, and burden of proving latter fact is on railway company.
    3. Railroads <&wkey;411 (16) — Burden of proving no obligation to fence met by proof animal was killed within “depot or station grounds.”
    Burden of proving that railroad was not obligated to fence track at place of killing cow is met when conclusively shown that animal was killed within “depot or station grounds,” which include all of right of way within yards and switching limits' at depot or station, and it is error to submit to jury issue whether company was required to fence its track at place of killing within such limits.
    [Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Depot Grounds.]
    4. Courts (&wkey;247(7) — Holding of Court of Civil Appeals held erroneous as in conflict with holdings of other such courts.
    Holding of Court of Civil Appeals in action against railroad - for killing cow on track held erroneous as in conflict with approved holdings of other Courts of Civil Appeals that railroad is not required to fence its tracks within limits of its sidetracks and switches at depots and stations.
    other cases see same topic and KEi-MTJMBHEt in all Key-Mumbered Digests and Indexes
    Error to Court of Civil Appeals of Tenth Supreme Judicial District.
    Action by H. W. Buice against the St. Louis Southwestern Railway Company and another. Judgment for plaintiff affirmed by Court of Civil Appeals (262 S. W. 558), and defendants bring error.
    Judgments reversed and cause remanded to county court.
    John E. Sheehy, S. P. Róss, and Nat Harris, all of Waco, for plaintiffs in error.
    Jake Tirey, of Waco, for defendant in error.
   BISHOP, J.

This is a suit by defendant in error H. W. Buice, against plaintiffs in error, St. Louis Southwestern Railway Company of Texas, and the Gulf, Colorado, & Santa F© Railway Company, for damages for killing a cow on the track of the first named company. Plaintiffs in error, in their answer in the county court, from which this appeal was perfected, alleged that the animal was killed within the depot ground and switching limits at the station of South Bosque at a place not required by law to be fenced.

The evidence shows that the cow was struck and killed by an east-bound train of the Gulf, Colorado, & Santa Eé Railway Company on the main line track of the St. Louis Southwestern Railway Company abput 156 feet west of the depot at South Bosque, and within the switching limits at said station.

The court instructed the jury to find for defendant in error, unless they believed from the evidence that public necessity, convenience, commerce, or the safety of the employees of the plaintiffs in error required the right of way to be left unfenced at the point where the cow was killed, and that, if they did so believe, to find for plaintiffs in error. Verdict and judgment were rendered in favor of defendant in error, and the judgment was by the Court of Civil Appeals affirmed. 262 S.W. 558.

Plaintiffs in error complain at the charge of the trial court, and contend that, as it was conclusively shown that the cow was killed, within the switching limits at the station, it was error to submit to the jury the question as to whether the railway company was required to fence its track at that place.

In a suit for damages for stock killed or injured by the locomotives and cars of - a railroad company, the burden is on the plaintiff to show that such killing or injury was proximately caused by the negligence of the railway company, its agents, or employ-' ees. Under our statute, negligence is conclusively established -by proof that the railroad was not fenced at the place where the killing or injury occurred, unless at such place the railroad company is not by law required or permitted to fence its -track. It having been shown that the animal was killed, the burden of proof was on the railway company to show that there was no obligation to fence the track* at the place of the killing. The requirements of this burden are met when it is conclusively shown that the animal was killed within the depot or station grounds. I. & G. N. Ry. Co. v. Cocke, 64 Tex. 151; I. & G. N. Ry. Co. v. Dunham, 68 Tex. 231, 4 S. W. 472, 2 Am. St. Rep. 489.

The depot or station grounds include all that part of the right of way embraced within the yards and switching limits at the depot or station. Here it was conclusively shown that the animal was struck and killed about 156 feet west of the depot at South Bosque, and within the switching limits. As a matter of law, this is a place where the railroad company is not required to fence its track, and its failure to do so cannot be held to be negligence. It was error for the trial court to submit to the jury this issue, and for this reason the judgment should be reversed.

We quote with approval from an opinion of the Court of Civil. Appeals for the First Supreme Judicial District by Justice Williams, in the case of G., C. & S. F. Ry. Co. v. Ogg, 8 Tex. Civ. App. 285, 28 S. W. 347, as follows:

“By law, railway companies are not required to fence their ‘depot and contiguous grounds.’ Railroad Co. v. Cocke, 64 Tex. 151; Railroad Co. v. Dunham, 68 Tex. 232, 4 S. W. 472 [2 Am. St. Rep. 484]; Railway Co. v. Wallace, 2 Tex. Civ. App. 271, 21 S. W. 973. By a construction, almost universal, of statutes requiring railways to fence their tracks, it has been established as the law that they are not required to fence.such places as public necessity or convenience requires should be left open, and that depot and station grounds are such places. It is unnecessary for us to review or restate the reasoning upon which this conclusion has been based. It is sufficient to say that, when it has been shown that the animal was killed upon the tracks within the station or depot grounds, it results that such place is not required to be fenced.’
“The court below erred in submitting to the jury, as a question of fact, whether or not the switches at the station could have been fenced, without inconvenience to the public. Under the law, the defendant was not required to fence them in.”

We also approve the holding of the Court of Civil Appeals for the Second Supreme Judicial District by J ustice Hunter in the case. of G., C. & S. F. Ry. Co. v. Blankenbeckler, 13 Tex. Civ. App. 249, 35 S. W. 331, as follows:

“We are of opinion that the evidence, as well as the conclusions of fact, indisputably shows that the cow was killed within the switching limits and contiguous depot grounds of the railroad company, and that these limits, in law, extend to and include the terminals and switch stands of all switches or side tracks at all depots and stations; and that public policy, in consideration of the safety to life and limb of employees and operatives who are compelled to pass over the tracks on foot in coupling and uncoupling cars, and turning switches, and other duties, both in the daytime and at night, requires that there he no pitfalls or cattle guards on the tracks or grounds over which they are compelled, often in the most hurried manner, to move, in order to perform the duties incident to such business. And as a fence could not cross the yards and tracks without making cattle guards or stops, the railroad company is not required to fence its tracks within the limits and terminals of its side tracks, switches, and switch stands, at its depots and stations.” 1

The holding of the Court of1 Civil Appeals in this case is in' conflict with that in the cases above cited, and we recommend that its judgment and that of the county court be reversed and the cause remanded to the county court.

CURETON, .C. J.,

The judgment recommended in the report of the Commission of Appeals is adopted, and will be entered as the judgment of the Supreme Court. We approve the holding of the Commission of Ap-' peals on the questions discussed in its opinion.  