Gilliland v. The Chicago & Alton Ry. Co.

• Decision Date: 23 November 1885
• Citation: 19 Mo.App. 411
• Parties: J. R. GILLILAND, Respondent, v. THE CHICAGO & ALTON RAILROAD COMPANY, Appellant.
• Court: Kansas Court of Appeals

19 Mo.App. 411

J. R. GILLILAND, Respondent, v. THE CHICAGO & ALTON RAILROAD COMPANY, Appellant.

Court of Appeals of Missouri, Kansas City.

November 23, 1885

APPEAL from Audrain Circuit Court, HON. ELIJAH ROBINSON, Judge.

Reversed.

Statement of case by the court.

This is an action to recover damages against the defendant--a railroad corporation--for negligently killing a cow belonging to plaintiff. The petition alleges two acts of negligence first, in running the cars through the town of Ladonia at an unusually rapid and dangerous rate of speed, whereby plaintiff's cow was killed; and, second, in allowing and permitting cobs and corn to remain upon its railroad track at said point, which said corn, etc, was known to attract thither stock, etc.; that plaintiff's cow was induced to come upon the track by said corn, and was thereby killed by defendant's train of cars.

At the trial it was admitted by plaintiff that the employes of the defendant could not have avoided the accident, and were guilty of no negligence in running the train. The cause was then submitted to the court for trial, without the intervention of a jury, upon the following agreed statement of facts:

" On the 17th day of December, 1882, plaintiff's cow, of the value of thirty-five dollars, was struck and killed by a freight train running west on defendant's road, at the grain elevator in the town of Laddonia, in Audrain county. Piles of cobs and shattered corn were on the embankment beside the track, and had rolled down, more or less, upon the side-track, which was known to defendant, and had been for thirty days or more.

The grain elevator belongs to Hisey & James, and stands on ground leased by them from defendant. That in addition to the elevator, Hisey & James had built pens in which they had stored corn, and had been prior to said 17th day of December 1882, shelling corn and loading it for shipment into cars on defendant's road. That in loading said corn into cars more or less would be spilled on the ground and side-track of defendant's road. That plaintiff's cow was between a car, standing on the side-track, and the elevator, which car was being loaded, or had just been loaded with shelled corn from the elevator; that as a train appeared on the main track, she ran from behind the car across the side-track and upon the main track, where she was struck and killed. Plaintiff knew that the corn pens were there; that piles of cobs and shatterd corn were upon the ground and side-tracks, and that Hisey & James' employes scattered more or less corn when loading it into the cars. He also knew his cow frequented these corn pens to eat the corn that might be found there."

The court found the law in favor of the plaintiff, and rendered judgment accordingly. From this judgment defendant prosecutes this appeal.

MCFARLANE & TRIMBLE, for the appellants.

I. The facts were agreed to, and it became a pure question of law, whether upon the facts plaintiff could recover. Henry v. Bell, 75 Mo. 198; Waddell v. Williams, 50 Mo. 218.

II. There was no negligence in operating the train. That the train men could not have avoided the accident is expressly admitted. The recovery must have been either on the ground that the lease was unlawful, or that the defendant was liable for the negligence of its tenants. But the lease was lawful. Powers incident and necessary to the successful operation of a railroad corporation are vested in it by implication. Rorer on Railroads, 50; Henning v. Ins. Co., 47 Mo. 425; Rev. Stat., sect. 706, 765.

III. Shipments of grain in bulk is encouraged by the laws of the state. Rev. Stat., sect. 812. Corn can be shelled, and by the same machinery and power placed in an elevator and loaded thence into the cars, in bulk, at much less cost and waste than by old methods. The whole benefit is to the shipper. The railroad company gets no profit from it. The elevator must necessarily have a position near the track, upon land usually constituting the right of way, or depot grounds of the company. The lease of this ground, then, was lawful and proper.

IV. If the lease was lawful, then defendant was not responsible, in this case, for the negligent manner in hich the land was lawfully used. Woods' Landlord and Tenant, 618, sect. 384; Sherm. & Redf. Neg., sect. 501.

V. The negligence shown was not the proximate cause of the damage. The cause is too remote. The general rule is that " one is answerable for the consequences of a fault which are natural and probable." If one's " fault happen to concur with something extraordinary, or unforeseen, he will not be liable." Sherm. & Redf. Neg., sect. 10; McGrew v. Stone, 53 Pa.St. 436.

VI. The plaintiff was negligent in permitting his cow to go into this dangerous place, and in doing so was guilty of such contributory negligence as precludes him from recovery. R. R. v. Adams, 43 Ind. 237; R. R. v. Street, 50 Ind. 225; Williams v. R. R., 11 Am. & English R. R. Cases, page 421.

No brief on file for respondent.

PHILIPS P. J.

The case being submitted upon an agreed statement of facts, the only question to be determined is, whether on the law, as applied to these facts, the judgment of the circuit court was for the right party. It being admitted that there is no proof of the alleged negligence in running the train, the verdict of the court must rest alone upon the question of defendant's liability for the imputed negligence in permitting corn, etc., to be in and about the railroad track.

The agreed statement shows that the only agency which the defendant had in the events which led to the injury of the plaintiff's cow, was in leasing the ground to Hisey & James. It neither erected, owned nor controlled the elevator. It did not spill the cobs and corn, nor place them near its track. Hisey & James built, operated, and controlled the elevator, and they, or their servants spilt the corn, and left it so that it ran onto or near defendant's railroad track. The only act of the defendant, immediately connected with the spilling, was in running its cars on its own track, and receiving grain from this elevator.

Upon what principle of law, then, is the defendant to be held bound for the injury to the cow? It must be either on the ground that, as owner of the land, it leased it to Hisey & James for an unlawful purpose, or for a use by the lessees which it knew, or might reasonably have anticipated, would probably, or naturally, result in su?? injury to a third party.

We take it that it will hardly be claimed that it was unlawful or improper for the defendant to lease this ground for the purpose of having an elevator erected thereon. Such structures are not only universal along railroad lines, but in the development and promotion of commerce,...