Lee v. St. Louis & S. F. R. Co.

Citation129 S.W. 773,150 Mo. App. 175
CourtCourt of Appeal of Missouri (US)
Decision Date28 June 1910
PartiesLEE v. ST. LOUIS & S. F. R. CO.

A woman 45 years old sustained a personal injury. Two ribs were broken, both ankles were sprained and a foot otherwise considerably injured. She was unable to walk for several months. Her nervous system was considerably shocked. She was confined to her bed for eight weeks and compelled to use crutches for about three months. She suffered great pain. Held, that a verdict for $2,000 was not excessive.

Appeal from Circuit Court, New Madrid County; Henry C. Riley, Judge.

Action by Annie E. Lee against the St. Louis & San Francisco Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

W. F. Evans and Moses Whybark, for appellant. J. V. Conran, for respondent.

NORTONI, J.

This is a suit for damages accrued to plaintiff on account of personal injuries received through defendant's negligence in failing to construct a sufficient approach to a public road crossing on its railroad. Plaintiff recovered, and defendant prosecutes the appeal.

It appears plaintiff was traveling in a carriage on the public highway and approaching the crossing of defendant's railroad when an embankment, on which the approach to the crossing was constructed, gave way and occasioned her injury. The horse, the carriage, and plaintiff were all precipitated from the embankment to the lower ground. more than seven feet below. As a result of the overturning of the carriage, plaintiff received two broken ribs, two sprained ankles, and other painful injuries.

The suit proceeds on our statute which requires railroad corporations to construct and maintain good and sufficient crossings and approaches thereto, where their railroads cross public roads open for public use. So much of the statute as is relevant here is as follows: "Every such corporation shall construct and maintain good and sufficient crossings, where its railroad crosses public roads or town streets, now or hereafter to be opened for public use, which crossings shall be constructed of the materials and in the manner following: On each side of each rail shall be laid and securely spiked to the cross-ties a plank of not less than ten inches in width, two inches in thickness, nor less than sixteen feet in length on all public roads, nor less than twenty-four feet in length on all streets in towns and cities, to be of good and sound timber; the space between the inside planks shall be filled with macadam or gravel even with the top of the planks, and shall make good and sufficient approaches thereto, of equal width therewith and of easy grade; the same shall be covered with gravel or macadam to a depth of not less than six inches, and shall be substantially and properly joined up to the plank required to be laid on the outside of each rail." Section 1103, Rev. St. 1899 (Ann. St. 1906, p. 942). A subsequent provision of the statute gives a right of action for damages to a party injured against the railroad company resulting from its neglect in omitting to construct or maintain the crossing, as required. For the same provisions touching the same subject-matter, see, also, another section of the statute as amended. Section 9554, Rev. St. 1899, amended by Laws 1905, p. 106, and as amended, Ann. St. 1906, p. 4377.

The petition counts upon the statute as though the railroad company had failed and neglected to construct both the crossing on its tracks and the approaches thereto, as required by the statutes. Among other things, it is alleged that defendant constructed a high embankment across which the public road approached the crossing on its tracks, and that such approach was constructed in a negligent manner in that it was only about 10 feet wide and thrown up of loose sand and dirt which was supported on the side by decayed and insecure timbers. It is averred that while plaintiff was approaching the crossing of the track on an approach so negligently constructed to the road crossing, one of the decayed timbers mentioned gave way and precipitated her, to the injury complained of. The proof shows defendant's railroad is constructed on...

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14 cases
  • Connell v. Jersey Realty & Inv. Co.
    • United States
    • United States State Supreme Court of Missouri
    • 2 May 1944
    ... ... Boeckeler, 119 Mo. 189, 24 S.W. 207; 18 C.J., p. 105, ... sec. 120; Sanford v. Kern, 223 Mo. 616, 122 S.W ... 1051; Johnson v. Ferguson, 329 Mo. 363, 44 S.W.2d ... 650; State ex rel. McIntosh v. Haworth, 124 S.W.2d ... 653; Mulik v. Jorganian, 326 Mo. 106, 37 S.W.2d 963; ... St. Louis v. Clagg, 233 S.W. 1; Shaw v. St ... Louis-S.F. Ry. Co., 9 S.W.2d 835; Hanke v. St ... Louis, 272 S.W. 933; Benton v. St. Louis, 217 ... Mo. 687, 118 S.W. 418. (4) Appellant is not estopped to deny ... dedication nor to deny as easement where nothing beyond ... permissive use is shown ... ...
  • Connell v. Jersey Realty & Investment Co., 38781.
    • United States
    • United States State Supreme Court of Missouri
    • 2 May 1944
    ... ... 921; Bauman v. Boeckeler, 119 Mo. 189, 24 S.W. 207; 18 C.J., p. 105, sec. 120; Sanford v. Kern, 223 Mo. 616, 122 S.W. 1051; Johnson v. Ferguson, 329 Mo. 363, 44 S.W. (2d) 650; State ex rel. McIntosh v. Haworth, 124 S.W. (2d) 653; Mulik v. Jorganian, 326 Mo. 106, 37 S.W. (2d) 963; St. Louis v. Clagg, 233 S.W. 1; Shaw v. St. Louis-S.F. Ry. Co., 9 S.W. (2d) 835; Hanke v. St. Louis, 272 S.W. 933; Benton v. St. Louis, 217 Mo. 687, 118 S.W. 418. (4) Appellant is not estopped to deny dedication nor to deny as easement where nothing beyond permissive use is shown. Wallach v. Stettina, 28 ... ...
  • Patterson v. Thompson
    • United States
    • Court of Appeal of Missouri (US)
    • 24 February 1955
    ...common law duty to construct and maintain the crossing in a condition which makes it reasonably safe for travel. Lee v. St. Louis & S. F. R. Co., 150 Mo.App. 175, 129 S.W. 773; Crockett v. City of Mexico, 336 Mo. 145, 77 S.W.2d 464, loc. cit. 466; Matthews v. Missouri Pac. Ry. Co., 26 Mo.Ap......
  • Phillips v. Pryor
    • United States
    • Court of Appeal of Missouri (US)
    • 27 November 1916
    ...crossings is dealing with public roads or town streets "now or hereafter to be opened for public use." As said in Lee v. St. Louis & San Francisco R. Co., 150 Mo. App. 175, loc. cit. 182, 129 S. W. 773, "There is no word here indicating that the obligation was enjoined only in respect to su......
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