29 S.W. 1013 (Mo. 1895), Clark v. The Chicago & Alton Railroad Co.

Citation:29 S.W. 1013, 127 Mo. 197
Opinion Judge:Gantt, P. J.
Party Name:Clark v. The Chicago & Alton Railroad Company, Appellant
Attorney:R. H. Kern and John A. Bellatti for appellant. Geo. W. Bailey for respondent.
Judge Panel:Gantt, P. J. Sherwood and Burgess, JJ., concur.
Case Date:March 05, 1895
Court:Supreme Court of Missouri
 
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Page 1013

29 S.W. 1013 (Mo. 1895)

127 Mo. 197

Clark

v.

The Chicago & Alton Railroad Company, Appellant

Supreme Court of Missouri, Second Division

March 5, 1895

Appeal from St. Louis City Circuit Court. -- Hon. L. B. Valliant, Judge.

Affirmed.

R. H. Kern and John A. Bellatti for appellant.

(1) The plaintiff must prove facts which establish the negligence of the defendant as the proximate cause of his injuries. 16 Am. and Eng. Encyclopedia of Law, page 453. (2) It is necessary for the plaintiff to establish by evidence circumstances from which it may fairly be inferred that there is a reasonable probability that the accident resulted from the want of some precaution which the defendant might, and ought to, have resorted to, and what particular precaution should have been taken. Daniel v. Railroad, L. R. 3 C. P. 216; Hayes v. Railroad, 111 U.S. 228; Railroad v. Stribbing, 62 Md. 504; 16 Am. and Eng. Encyclopedia of Law, 601; McCarg v. Railroad, 8 Hun, 599; Searles v. Railroad, 101 N.Y. 661. (3) It is incorrect to say that, because an accident happened the defendant was guilty of negligence in not foreseeing that it might happen and in not guarding against that remote contingency. Dougan v. Company, 56 N.Y. 1; Hubbell v. City, 104 N.Y. 434; Hayman v. Railroad, 118 Pa. St. 508; Graff v. Railroad, 161 Pa. St. 230; Deyl v. Railroad, 34 N.Y. 9; Railroad v. Gibson, 11 Am. and Eng. Railroad Cases, 142. (4) An inevitable accident is a fortuitous event, an accident which can not be foreseen or prevented. 10 Am. and Eng. Encyclopedia of Law, page 601. (5) A casualty happening against the will and without the negligence of the party, is as to him an inevitable accident. Hodgson v. Dexter, 1 Cranch C. C. 109. (6) An accident is an unusual and unexpected event from a known cause. 1 Am. and Eng. Encyclopedia of Law, page 82. (7) The law has not made a railroad company an usurer against every casualty that may happen. When it has exercised the highest degree of care for the safety of the passenger consistent with the reasonable exercise of its franchise, the injury must be attributed to inevitable accident. Railroad v. Stumps, 69 Ill. 509; 2 Wood on Railway Law, 1049. (8) No case or principle can be found, subjecting a defendant to liability for an injury caused by an accident that happened without fault on his part. All cases concede that an injury arising from inevitable accident lays no foundation for legal responsibility. 1 Thompson on Negligence, 47 and 61; 16 Am. and Eng. Encyclopedia of Law, page 396, and cases cited in note. (9) "When the plaintiff's own evidence shows the operation of causes beyond the control, as the tortious act of a stranger, tending to produce the accident, the plaintiff, in order to make out a prima facie case, must generally be able to go over and prove the actual negligence of the defendant as an operating and efficient cause, or that by the exercise of due diligence the accident might have been avoided." Booth's Street Railway Law, sec. 361; Wharton on Negligence, sec. 661; Lebarrow v. Ferry Company, 11 Allen, 312; Gillespie v. Railroad, 6 Mo.App. 554; Railroad v. Gibson, 11 Am. and Eng. Railroad Cases, 142.

Geo. W. Bailey for respondent.

(1) As to the duty and degree of care owing by carrier to passenger: The law on this point seems so well settled that it is deemed that a few citations of selected authorities will be sufficient. First. The universally accepted rule is that "they are bound to the utmost care and diligence of very cautious persons." 2 Greenleaf on Evidence [15 Ed.], sec. 221; Derby v. Railroad, 14 Howard, 486; Railroad v. Phillips, 55 Ill. 194; Furnish v. Railroad, 102 Mo. 442; Sawyer v. Railroad, 37 Mo. 260. Second. "They bind themselves to carry safely, as far as human care and foresight can go, and are responsible for the slightest neglect." Angell on Carriers, sec. 569; Lemon v. Chanslor, 68 Mo. 356; Stokes v. Saltonstall, 13 Peters, 181; Christy v. Griggs, 11 Pick. 106; Ingalls v. Bills, 9 Metc. 1. Third. Under any given circumstances, "the degree of care and diligence must be in proportion to the peril and the seriousness of the consequences of neglect, and the slightest negligence would be culpable." Railroad v. Phillips, 55 Ill. 194; Warren v. Railroad, 8 Allen (Mass.), 227; Railroad v. Derby, 14 Howard, 486; Furnish v. Railroad, 102 Mo. 442; Patterson's Railway Accident Law, 165. Fourth. "The highest degree of care, not amounting to an absolute warranty against injury, or involving such an expenditure of money and effort as would paralyze the business itself, will be required." Story on Bailments, secs. 601, 602; Railroad v. Lewis, 58 Am. and Eng. R. R. Cases, 126; McPadden v. Railroad, 44 N.Y. 478; Taylor v. Railroad, 48 N.H. 304; 2 Kent's Commentaries, 600; Ritter's Adm'r v. Railroad, 85 Ky. 368. (2) A railroad is a known place of danger, as a matter of law, and those who attempt to cross it, or to obstruct it, necessarily or unnecessarily -- without exercising due care and caution to avoid accident or collision, are guilty of negligence as a matter of law. Farmer v. Railroad (1894), 99 Mich. 131; Kellow v. Railroad, 68 Iowa 470; Weller v. Railroad, 120 Mo. 647; Dlauhi v. Railroad, 105 Mo. 657; Moore v. Railroad, 108 Pa. St. 352; 2 Wood on Railroads, pp. 1518, 1520. (3) First. In conflicting evidence as to negligence, it becomes a question for the jury; "but when evidence has been introduced which is sufficient, as a matter of law, to hold defendant liable, or to create a presumption of negligence, the burden of proof shifts to defendant." 2 Wood on Railroads, 1518, 1520, 1567; Canal Co. v. Bentley, 66 Pa. St. 30; Railroad v. Foreman, 73 Texas, 311; Thompson on Negligence, 1235. Second. "Where the facts are undisputed, and the inference of negligence would not be a matter of doubt about which reasonable minds could differ, it is proper for the court to declare the existence of negligence as a matter of law." Tetherow v. Railroad, 98 Mo. 74; Weller v. Railroad, 120 Mo. 647; Kinney v. Springfield, 35 Mo.App. 97; Ridings v. Railroad, 33 Mo.App. 527; Boland v. Kansas City, 32 Mo.App. 8; Railroad v. Craig, 58 Am. and Eng. R. R. Cases, 208; Railroad v. Ives, 144 U.S. Rep. 408. (4) "And the question whether it was an act of negligence to stop the train upon the crossing, depends entirely upon whether the passengers were thereby exposed to such danger." Kellow v. Railroad, 68 Iowa 470. (5) And such exposure to danger, where the facts are disputed, is evidence of negligence as a matter of fact and shifts the burden of proof. Clayton v. Brooks, 150 Ill. 105; Beach on Cont. Negligence [2 Ed.], sec. 37. (6) The rule that the act of the defendant must be "found to be the immediate and proximate cause of the accident," does not apply where one has been injured by the independent acts of two wrongdoers, and where the act of the defendant wrongdoer constitutes a breach of contract. Kellow v. Railroad, 68 Iowa 470; Wood on Railroads [Ed. 1894], p. 1558; Ferry Co. v. Nolan, 135 Ind. 67. (7) As to the injury being attributable to the act of a stranger, third party, or joint tortfeaser, or acting on the assumption that a tortfeasor will obey the law. First: "No person has a right to depend entirely upon the care and prudence of others. He is bound to exercise due care to prevent injury...

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