Matthews v. Missouri Pac. Ry. Co.

• Decision Date: 03 May 1887
• Citation: 26 Mo.App. 75
• Parties: BRIDGET MATTHEWS, Respondent, v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
• Court: Missouri Court of Appeals

26 Mo.App. 75

BRIDGET MATTHEWS, Respondent, v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant.

Court of Appeals of Missouri, St. Louis.

May 3, 1887

APPEAL from the St. Louis Circuit Court, DANIEL DILLON, Judge.

Reversed and remanded.

S. M BRECKINRIDGE and M. F. WATTS, for the appellant: As lessee the defendant could not be liable, without notice, or knowledge, of the existence of the nuisance. Pinney v Berry, 61 Mo. 359; Dickson v. Railroad, 71 Mo. 575; Wayland v. Railroad, 75 Mo. 548. The first instruction given for the plaintiff is erroneous. It takes from the consideration of the jury the finding of the controverted fact whether Brooklyn avenue was a public highway or not. The instruction covers the whole case, and yet omits the question of negligence on the part of the plaintiff, as well as on the part of the brother of the injured boy. Maxwell v. Railroad, 85 Mo. 95. The second instruction given for the plaintiff is erroneous, in that it assumes that the defendant " " " " maintained" the structure in question; and in that it assumes that the ordinance read in evidence applied to this structure. Maxwell v. Railroad, 85 Mo. 95; Muirhead v. Railroad, 19 Mo.App. 634; Wilkerson v. Thompson, 82 Mo. 317; Comers v. Taylor, 82 Mo. 341. The verdict is excessive. Dunn v. Railroad, 21 Mo.App. 188.

A. R. TAYLOR, for the respondent: The defendant, maintaining an obstruction in a highway, is bound to know that it is a nuisance, because it is, by law, a nuisance. The case of nuisances erected on private lands by preceding owners has no application to such a case. Dillon Mun. Corp. [3 Ed.] sects. 657, 660, and authorities cited; 2 Brad. [Ill.] 435.

OPINION

THOMPSON J.

The plaintiff, a widow, brings this action for the damages which she has sustained through an injury received by her minor son, William, in consequence of being driven, while riding in a wagon, in the city of East St. Louis, Illinois, against a structure composing the approach to the Illinois and St. Louis bridge, alleged to be operated by the defendant. The answer is a general denial, merely. There was evidence tending to show that an elder brother of the boy, for whose injury this action was brought, named, Michael, was a driver of a baggage wagon of the St. Louis Transfer Company; that his brother and another boy were riding with him, on the seat of the wagon, about eight o'clock at night; that it was dark, and that there were no lights of any kind at, or near, the place of the accident; that the driver of the wagon attempted to drive under the structure known as the " approach" of the Illinois & St. Louis Bridge, where it crosses Brooklyn street; that the frame work of this structure was so near the surface of the street that it struck the boy, William, and his brother, Michael, breaking the leg of William, and fatally injuring Michael; that Brooklyn street had been used as a public highway of East St. Louis for twenty-six years; that the defendant is the lessee of the Illinois & St. Louis Bridge, jointly with another railway company, under a lease made about three years prior to the accident, and extending for the term of ninety-nine years; that the plaintiff was put to an expense of between two and three hundred dollars in nursing and caring for the two sons, in consequence of their injuries; that he always had, since able to work, lived with her, worked out, and given his earnings to her, and that his earning capacity had been diminished, perhaps, one-half, in consequence of the accident. An ordinance of the city of East St. Louis, passed in 1881, prior to this accident, was put in evidence; it gave to the Illinois & St. Louis Bridge Company the right to erect its eastern approach over cross-streets and alleys, " so that the same be constructed in such a manner as to leave sufficient perpendicular space above such cross-streets for all practicable purposes, and all passages thereon." It does not distinctly appear that Brooklyn street was one of the cross-streets named therein, nor was it shown that the city of East St. Louis had power to pass the ordinance. The court overruled the demurrer to the evidence, and submitted the case to the jury, upon certain instructions, tendered by the opposing parties. Certain special interrogatories were submitted to the jury by both parties. Among those submitted by the defendant were the following, the answers given by the jury being added thereto:

" Q. What amount could the said William Matthews earn, from the time of the accident until he attained the age of twenty-one, per month, if said accident had not happened? A. Average fifty dollars.

Q. What amount could the said William Matthews earn, from the date of the accident, per month, until he reaches the age of twenty-one years, after the injury? A. Average twenty-five dollars."

The court refused to submit to the jury a special interrogatory, requested by the defendant, as to how much it would cost per month to board, lodge, clothe, and maintain the said William Matthews, from the date of the accident until he should reach the age of twenty-one years. This ruling is not properly presented for decision on this appeal, because it is not assigned for error in the appellant's statement. It is, however, involved in the question of damages, and must unavoidably be considered under that head.

I. We are of opinion that the court committed no error in overruling the demurrer to the evidence. We do not see the force of the objection, taken in this way, that there was no competent evidence tending to prove that Brooklyn street was a public highway. The evidence was the parol testimony of a witness who had lived for twenty-six years in the vicinity, and no exception was saved to the introduction of it. In this state, parol evidence of ten years' uninterrupted adverse use by the public, is sufficient to show the existence of a public highway, in a proceeding, civil or criminal, against an obstructor of the same. Zimmerman v. Snowden, 88 Mo. 218; The State v. Walters, 69 Mo. 463; The State v. Wells, 70 Mo. 635. Nor do we see the force of the argument, that it was not specifically proved that the defendant " " operated" the bridge approach, as charged in the petition. No such question appears to have been brought specifically to the attention of the court at the trial, though the petition alleged the fact; if it had been, the omission could have been easily supplied; since, without doubt, the court, the counsel, and the whole jury knew that such was the fact; nor does it seem material, for it appeared that the defendant had held the structure under a ninety-nine year lease, for some three years, and its possession thereunder, with the attendant responsibilities in respect of public nuisances, might properly be presumed, in the absence of any countervailing evidence. The whole question of contributory negligence, both on the part of the boy who was injured, and the plaintiff, may be laid out of view, because no such defence was pleaded, as required under our remedial system, and an unavoidable inference of contributory negligence does not arise out of the plaintiff's evidence. Evans & Howard Fire Brick Co. v. Railroad, 21 Mo.App. 648, 656; Thompson v. Railroad, 51 Mo. 190; Hicks v. Railroad, 65 Mo. 36; Schuerman v. Railroad, 3 Mo.App. 565.

Nor is the doctrine that, in order to make a land owner liable for damages happening to another land owner, from a nuisance existing upon the land of the former, prior to its purchase he must have had notice or knowledge of the nuisance, at all questioned. Pinney v. Berry, 61 Mo. 359; Dickson v. Railroad, 71 Mo. 575. But we know of no case which applies this rule where the nuisance is not upon the premises of the land owner, but consists of an erection, excavation, or obstruction made by, or continued by, him, in the public highway. The cases which sustain actions for damages to a traveler, who, without fault on his part, is injured by coming into direct contact with such obstructions, are numerous. Manley v. Canal Co., 2 Hurl. & N. 840; Kessel v. Butler, 53 N.Y. 612; Fox v. Sackett, 10 Allen 535; Nelson v. Godfrey, 12 Ill. 20; Dickey v. Telegraph Co., 46 Me. 483; Thomas v. Telegraph Co., 100 Mass. 156. This list of cases might be greatly extended and applied to all sorts of nuisances endangering travel upon public highways, and, it may be added with confidence, that nowhere in these cases is the doctrine upheld, that either the original author, or the subsequent continuer, of the nuisance, must, in order to become liable for damages sustained by a traveler thereby, have had knowledge of its existence. The erecting, or the continuing, of the nuisance, is an unlawful act, and the law will not allow him to do the act, and then to escape liability, by saying that he did not know that he did it. If a railway company, for its own purpose and profit obstruct a public highway, it must erect and maintain suitable guards or barriers to protect travelers from the danger, or else pay the damages which may accrue to any one in consequence of its failure so to do. Veazie v. Railroad, 49 Me. 119; Potter v. Bunnell, 20 Ohio St. 150; Lowell v. Railroad, 23 Pick. 24. If, in building its railway across a public highway, it obstructs the highway, it is bound, independently of any statutory obligation, to restore it, so that it shall be reasonably safe for the traveling public. 1 Thomp. on Neg. 357, and cases cited. In the discharge of this duty, it must, at all points where its road crosses a public highway, construct safe crossings and maintain them in suitable repair, or answer in damages for any injuries flowing from neglect of this duty. Farley v. Railroad, 42 Ia. 234; Hays v. Gallagher, 72 Pa.St. 136; Oliver v. Railroad, L. R. 9 Q. B. 409; People v. Railroad, 2...