Ellis v. Wabash

• Decision Date: 23 March 1885
• Citation: 17 Mo.App. 126
• Court: Missouri Court of Appeals
• Parties: ELI J. ELLIS, Respondent, v. THE WABASH, ST. LOUIS & PACIFIC RY. CO, Appellant.

17 Mo.App. 126

ELI J. ELLIS, Respondent,

v.THE WABASH, ST. LOUIS & PACIFIC RY. CO, Appellant.

Kansas City Court of Appeals, Missouri.

Mar. 23, 1885.

APPEAL from Daviess Circuit Court, HON. JOHN C. HOWELL, Judge.

Reversed.

The facts are sufficiently stated in the opinion of the court.

GEORGE S. GROVER for the appellant.

I. There was a complete failure of proof in this action; and for that reason the trial court should have directed the jury to find for the defendant. The Practice Act of the state provides that “when the allegation of the cause of action or defense to which the proof is directed, is unproved, not in some particular or particulars only, but in its entire scope and meaning, it shall not be dee ned a case of variance, but a failure of proof.”--Sect. 3702, Rev. Stat., 1879, p. 730.

II. The court admitted incompetent evidence. There was no allegation in the petition concerning the piles of dirt which caused the accident. All such testimony, therefore, should have been excluded, and its admission was reversible error.-- Waldhier v. H. & St. Jo. R. R., 71 Mo. 514; Buffington v. R. R., 64 Mo. 246; Edens v. H. & St. Jo. R. R., 72 Mo. 212; Price v. St. L., K. C. & N. Ry., 72 Mo. 414; Atchison v. Chicago, etc., R. R., not yet reported.

III. The instructions given were erroneous. The first instruction given for plaintiff submitted a cause of action not stated in the petition. In the cases above cited this precise error has been held sufficient to warrant a reversal of the judgment.--See also Bullene v. Smith, 73 Mo. 151; Ely v. St. L., K. C. & N. Ry., 77 Mo. 34. The second instruction had no evidence to support it, and that it should not have been given in such a case is too well settled to need the citation of authorities.

No brief on file for respondent.

Opinion by ELLISON, J.

This action was begun before a justice of the peace in Daviess county on the following statement:

“That the defendant is a corporation organized and existing under the laws of the State of Missouri.

That it is engaged in running and operating a railroad in the township of Grand River, county of Daviess, and state of Missouri.

That the plaintiff was the owner of a certain cow, which, on or about the 1st day of July, 1881, strayed upon defendant's railroad in said township, at a point where the same crosses a public road. That defendant, by its servants and agents, carelessly and negligently ran one of defendant's locomotive engines against and upon said cow, without ringing a bell or sounding a whistle, to plaintiff's damage in the sum of $35.00.

That said crossing had been so negligently and defectively constructed by defendant that said cow became entangled therein and was unable to escape therefrom.

Wherefore plaintiff prays judgment in the sum of $35.00 and costs.”

There was no testimony or instructions offered as to the failure to ring the bell or sound the whistle. The only evidence in the case, related to two piles of dirt thrown out of a cattle guard on one side of a forty-foot road. That of one witness covering the scope of the case is as follows:

James Sadler, witness for plaintiff, testified as follows:

“I saw the plaintiff's cow a few minutes before she was struck by defendant's engine. I also saw her very soon after she was struck: she was knocked into the cattle-guards on the west side of the railroad. It was at a public road crossing in Grand River township, Daviess county, Missouri. The cow was killed by the locomotive striking her while on the crossing. The road ran north and south across the railroad, and was forty feet wide.”

Witness was asked by plaintiff's counsel about two piles of dirt, thrown out of a pit in digging for cattle-guards, piled between the cattle-guards and within the forty feet allowed for the public, to the introduction of which evidence defendant objected, as being irrelevant and immaterial under the complaint in this case, which charges that the crossing had been negligently and defectively constructed by the defendant, while the proof offered tended to an obstruction placed by defendant within the limits of the forty feet; which objection was overruled by the court, and against the objection of the defendant, witness testified as follows:

“Where the road crosses the railroad the travelled way is only some ten or fifteen feet wide. Outside of the travelled way and between the cattle-guards there is, on the west side of the public road, two piles of dirt some five feet high. The bases of these piles of dirt come within a foot of the ends of the ties, and were steep to the top. These piles of dirt are on the forty feet of the public road. The cow, instead of passing across the open public crossing, which was open and level for some ten or twelve feet in width, had, as her tracks indicated, been caught between these two piles of dirt, and had attempted to climb over one of them. Her tracks appeared on the side of one of these piles of dirt, as if she had attempted to pass over it, and was struck by the engine and thrown into the cattle-guards. I saw the tracks of this cow on the sides of one of these piles of dirt for six or seven feet. The public travelled way over the crossing was only about twelve feet of level road, and the balance of the west side had the piles of dirt as I have stated.”

To the introduction of all which evidence the...