Flannery v. Kansas City
| Decision Date | 30 June 1886 |
| Citation | 23 Mo.App. 120 |
| Parties | J. B. FLANNERY, Respondent, v. THE KANSAS CITY, ST. JOSEPH & COUNCIL BLUFFS RAILWAY COMPANY, Appellant. |
| Court | Missouri Court of Appeals |
APPEAL from Platte Circuit Court, HON. GEORGE W. DUNN, Judge.
Reversed.
The case is stated in the opinion.
EDWARDS & ELLISON, and STRONG & MOSMAN, for the appellant.
I. The first instruction given for plaintiff was error. It left the jury to conjecture what acts or omissions constituted negligence. De Witt v. Railroad, 50 Mo. 302; Rains v. Railroad, 71 Mo. 164; Goodwin v. Railroad, 75 Mo. 73; Yarnall v. Railroad, 75 Mo. 575.
II. The third instruction for plaintiff was also error. It declared, in effect, that proof of the injury raised a presumption of negligence. This is a common law action; negligence cannot be presumed. Swearingen v. Railroad, 64 Mo. 73; McPheeters v. Railroad, 45 Mo. 22; Lloyd v. Railroad, 49 Mo. 199; Meyer v. Railroad, 35 Mo. 352. Besides, it contradicted defendant's fifth instruction, and emphasized the error.
III. The special findings were equivalent to a finding that plaintiff has not proved the negligence alleged in the complaint. Morrow v. Commissoners, 21 Kan. 484; Railroad v. McCandliss, 33 Kan. 366. They were evasive and will not support a general verdict. Hopkins v. Stanley, 43 Ind. 553.
IV. The motion for judgment on the special findings in defendant's favor should have been sustained. Laws of Mo., 1885, p. 214; McGonigle v. Gordon, 11 Kansas, 167. The motion in arrest should have been sustained. Cases cited supra. So, also, the motion for new trial should have prevailed. There should be final judgment here for defendant.
C. W. FREEMAN, for the respondent.
I. Plaintiff's first instruction was properly given. The issue was whether defendant's servants saw the animals, or, by the exercise of ordinary caution and watchfulness, might have seen them in time to have prevented the injury. The jury found this issue for the plaintiff. Isbell v. Railroad, 60 Mo. 475; Kendig v. Railroad, 79 Mo. 207; Pryor v. Railroad, 69 Mo. 215; Cadmus v. Railroad, 18 C. L. J. 13.
II. There being evidence to sustain the finding this court will not inquire as to the weight of evidence. Hamilton v. Berry, 74 Mo. 176; Appleby v. Brock, 76 Mo. 314; Hodges v. Black, 76 Mo. 537; Grove v. Kansas City, 75 Mo. 672.
III. The third instruction given for plaintiff was proper under the evidence in the case, which clearly showed negligence. Negligence is the breach of a legal duty which results in an injury to others. The duty is measured by the exigencies of the occasion. Railroad v. Jones, 95 U. S. 439. And if unusual precautions are necessary to avoid accidents, the failure to use them would authorize the jury to infer negligence. Karle v. Railroad, 55 Mo. 483; McPheeters v. Railroad, 45 Mo. 22.
IV. In cases where what constitutes a proper rate of speed depends upon the length and character of a train, the location and surroundings of the track and other circumstances, and no law or ordinance regulating the speed is in evidence, whether the rate of speed is dangerous is a question of fact for the jury. Frick v. Railroad, 75 Mo. 596.
V. As regards the “special findings” of the jury, they are not inconsistent with the general finding-- the verdict, as the evidence shows. The verdict is for the right party and there is no error of law.
This is an action to recover damages for killing plaintiff's cow, alleged to have been done by one of defendant's trains of cars. The accident occurred inside of the switch limits of the town of Parkville in Platte county, on the eleventh day of June, 1884. The charge is that the injury resulted from the negligence of defendant's servants in charge of the train in managing and running the same.
Judgment for plaintiff, from which the defendant prosecutes this appeal.
At the close of plaintiff's evidence, and again, at the close of all the evidence, the defendant interposed a demurrer to the evidence. This demurrer, we are of opinion, the court should have sustained. When the plaintiff rested, while it may be conceded there was sufficient evidence to have warranted the jury in finding that the cow was struck by some one of defendant's trains, yet there was not a particle of evidence tending to show any actionable negligence on the part of those in charge of the train. It did not even appear, at the close of plaintiff's evidence, that the engineer or fireman saw the cow before or at the time of the collision, or that they could have avoided the injury had they seen the cow. Nor was there any proof from which the jury, without the merest speculation, could have inferred that the servants of defendant were negligent in not discovering the cow sooner. There was clearly no case made out up to this point in the progress of the trial. Lord v. Ry. Co., 82 Mo. 139.
The only remaining question, therefore, for determination is, did the defendant's evidence (which it unnecessarily introduced), so supplement the proof submitted by plaintiff as to supply the essential omission on the issue of negligence?
The evidence tended to show that the Missouri river at Parkville runs nearly south within a few feet of the main track of the defendant; its embankments are very high. On the west side of the defendant's track, from the Parkville depot to the bridge, there is a narrow strip of ground which comes to a point at the mouth of the ravine where the bridge is located. This tongue of land widens towards the depot, northward, to ten or twelve feet in breath; its width in dry land varies according to the rise and fall of the river. A switch extends along the east side of the main track about ten feet from it, from near the depot southward, and extends across the ravine on a separate bridge (trestle). On this switch track some of the witnesses testified they saw a freight (construction) train standing about five or six o'clock, A. M., on the morning of the accident. George Davis testified that the same train was standing at the same place all night. This train of freight (construction) cars formed a barrier to the east of the main track, so that cattle standing on the tongue of land near the bridge (trestle) could not pass across the main track eastward, and could only escape from their position by crossing the ravine at its mouth, or jumping into the river. At the time of the injury the water in the river was high and backed up the ravine. So that, as the witnesses testified, the cows could not cross at the mouth of the ravine. Thus, the river on the one side, the switch on the other, upon which was standing all night a construction train, laid up for the night, extending unbroken from near the south end of the depot to and across the trestle over the ravine, and the ravine spanned by an open trestle, formed a sort of V-shaped inclosure, the open end of which was at the depot, with the main track running through the middle. The engineer and fireman testified that they were at their posts of duty, and that the cattle were within the inclosure made by the river, cars, etc., and that the cattle were lying down in the shade of certain large cotton wood trees, making it difficult to see them on approaching. On approaching the station the engineer and fireman testified that the signal was given, and the train slowed until its speed was reduced to about six or eight miles an hour. On coming around a curve at this point the fireman called for a lookout, and the engineer then discovered the cattle lying down. As soon as they got up he gave the whistle alarm. The cattle started for the culvert, so as to satify the engineer that a collision would likely occur as they emerged on the track. Being satified that he could not halt his train in time to avoid the collision, and that there was more danger to his train in colliding at the slow rate he was running, he put on the steam and knocked the cow into the river, where she was found the next morning.
This is the substance and effect of the evidence. Wherein there is a single fact to warrant the verdict of the jury, we are unable to discover. The case, as indicated by one of the instructions given and those refused, as well as the argument of respondent's counsel at this bar, was tried on the theory, that it was the duty of the engineer to have been on the lookout at that point for the presence of these cattle, and if he could have discovered them near the track in time to have stopped his train before the collision, the defendant is as much liable as if the engineer had wilfully run the cow down after discovering her on the track. This is not the law, as applied to the facts of this case. There was no evidence that the engineer knew that these cattle were in the habit of resting over night at this point. Nor is there any evidence that they ever were there before. It was a point where defendant was not required to fence its road. Railroad companies are not held to anticipate that cattle will be at such point in the night time. Nor are they required, under all circumstances, even on seeing cattle grazing or reposing near the track, to sound an alarm or to slow up the train. As to cattle, under circumstances like those disclosed by this record, no negligence is imputable to the engineer until he discovers that the cattle will likely go upon the track. Young v. Ry. Co., 79 Mo. 336; Milburn v. Ry. Co., 21 Mo. App., and Sloop v. Ry. Co., 22 Mo. App. 593.
The evidence failing to show that the train could have been stopped in time to have averted the injury after the discovery of the danger, the plaintiff failed to make out a case.
I. Among the questions of fact, submitted for the finding of the jury, and the answers thereto, are the following:
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