Brown v. The Wabash, St. Louis & Pacific Ry. Co.

• Decision Date: 04 January 1886
• Citation: 20 Mo.App. 222
• Parties: BRAXTON C. BROWN, Respondent, v. THE WABASH, ST. LOUIS & PACIFIC RAILWAY COMPANY, Appellant.
• Court: Kansas Court of Appeals

20 Mo.App. 222

BRAXTON C. BROWN, Respondent, v. THE WABASH, ST. LOUIS & PACIFIC RAILWAY COMPANY, Appellant.

Court of Appeals of Missouri, Kansas City.

January 4, 1886

APPEAL from Livingston Circuit Court, HON. JAMES M. DAVIS, Judge.

Reversed.

The facts are stated in the opinion.

GEORGE S. GROVER, for the appellant.

I. The complaint does not state a cause of action, at common law and the obstructing of the public crossing or highway, was not the proximate cause of the injury. Powell v Devenney, 3 Cushing 301; Schmidt v. R. R., 83 Ill. 405; Bosch v. R. R., 44 Iowa 402.

II. The judgment should have been for defendant. There could be no recovery under the statute. Section 2124, Rev. Stat.; Walton v. R. R., 67 Mo. 56. Nor at common law without proof of negligent management of the train. Swearingen v. R. R., 64 Mo. 73; Wallace v. R. R., 74 Mo. 594. Nor for blocking the crossing, as that was not the proximate cause of the injury. Clark v. R. R., 39 Mo. 191; Harlan v. R. R., 65 Mo. 25; Henry v. R. R., 76 Mo. 293.

J. G. WYNNE, and G. F. DAVIS, for the respondent.

I. The petition avers that by reason of the negligence of defendant in allowing its train to remain across the public crossing, the cattle were killed and injured. It is not claimed that plaintiff is entitled to recover either under the statute or a city charter, but at common law, on account of the negligence of the defendant.

II. The only points made by defendant that have any application to this case are: That the complaint does not state a cause of action at common law, and that the blocking of the public crossing or highway was not the proximate cause of the injury. As to the first point, see Garner v. H. & St. Jo. R. R., 34 Mo. 289; 1 Sutherland on Damages (1 Ed.) 27-30. As to the second point, see 1 Sutherland on Damages (1 Ed.) 27-30; Sedgwick on Measure of Damages (4 Ed.) 83-97.

PHILIPS P. J.

This is an action to recover damages against the defendant, a railroad corporation, for injury to certain of plaintiff's cattle. After the matters of inducement, the petition alleges that, " at the time the said cows were killed and injured, a switch joined and attached to the main track of this defendant's road on either side of its depot; that on or about the said nineteenth day of May, 1882, said defendant wilfully and negligently obstructed the public highway and crossing then and there being across the main track and switch of the defendant's road, at said station of Bedford, by running one of its freight trains on said switch and across said public crossing and highway, and by permitting the same to be and remain across said public highway and crossing for a period of time more than two hours' duration, and immediately preceding and at the time plaintiff's cattle were killed and injured, as aforesaid. That plaintiff's cattle were in the habit of and accustomed to cross this defendant's road at the said public crossing, for the purpose of grazing on the range. That while the public crossing was thus blocked and obstructed, and while plaintiff's cattle were waiting to cross said road, another train came up and passed on the main track of defendant's road, and run over and killed and injured said cattle," etc.

The cause was submitted to the court, without the intervention of a jury, on the following agreed statement of facts:

" 1. It is agreed that on or about the nineteenth day of May, 1882, plaintiff was the owner of three cows, one of the value of thirty dollars, and the other two of the value of thirty-five dollars each.

2. That on or about the said date, an engine and train of defendant's run over and killed one of said cows of the value of thirty dollars, one of the value of thirty-five dollars, and injured and damaged the other cow to the amount of twenty dollars, at and within the switch limits of what was formerly known as Bedford station, on said sailroad, in Grand River township, Livingston county, Missouri.

3. That at said station there was at the time a switch joined and attached to the main track of defendant's road, on either side of its depot, and that on or about said day the defendant's servants, in charge of the train of cars, blocked and obstructed a public highway and crossing then and there running across said switches and main track of defendant's road, at said station of Bedford, by running one of the freight trains of defendant on said switch and across said public crossing, and by permitting the same to be and remain across said public crossing for more than two hours immediately preceding and at the time of said injury, and that there was room on said side track to have opened said train at said crossing.

4. That plaintiff's cattle were in the habit of crossing said main track and switches on said public crossing, for the purpose of grazing on the range.

5. That while said crossing was blocked, as aforesaid, and while plaintiff's cattle were waiting to cross said road, another train came up and passed on the main track of defendant's road, and run over and killed and injured said cattle, as aforesaid.

6. That said freight train, that blockaded said crossing aforesaid, was waiting upon said track for the passage of another freight train, which last named train was the train that caused the injury. Said Bedford station being the regular meeting point for said freight trains. Said freight train being delayed at said station for the time above stated, by reason of the other train being two hours behind its regular time, which last named train killed and injured said stock within the switch limits of said station.

7. That defendant is and was a corporation duly organized under the laws of Missouri.

8. This cause is submitted to the court sitting as a jury, upon the foregoing agreed statement of facts, and if the court shall be of the opinion that under the pleadings and the facts as agreed upon, the plaintiff is entitled to recover, judgment shall be entered in his favor for eighty-five dollars and costs. Otherwise the judgment shall be for the defendant."

The court found for the plaintiff, and entered judgment accordingly. Defendant has brought the case here on appeal.

I. The facts being agreed upon, the question for our determination is, does the law arising on the facts support the verdict and judgment?

Counsel have discussed a variety of matters, supposed to arise on this record. But it occurs to me that the controlling question is, was the injury to the cattle the proximate result of the wrongful act of defendant in obstructing the crossing at the highway? As the cattle were not killed by the train standing on the crossing, and it is not pretended that there was any culpable negligence on the part of the defendant's servants in operating the train that collided with the cattle, therefore, to fix upon defendant a liability, it must be maintained, first, that the defendant was violating a duty to the public in obstructing the crossing, and, second, that this wrongful act was the proximate cause of the injury.

It may be conceded that defendant occupied the crossing for an unnecessary length of time, especially so when it is admitted that there was ample room on the switch for an opening in the train. For any damage directly traceable to this obstruction the defendant was unquestionably answerable.

The second inquiry, however, as to whether the injury was the proximate result of the negligent act, is more difficult to answer. Few questions are presented for judicial determination more complex, and often metaphysical and perplexing, than the ascertainment of the dividing line between proximate and remote...