30 S.W. 339 (Mo. 1895), Kelsay v. the Missouri Pacific Railway Company

Citation:30 S.W. 339, 129 Mo. 362
Opinion Judge:Macfarlane, J.
Party Name:Kelsay v. The Missouri Pacific Railway Company, Appellant
Attorney:R. T. Railey for appellant. Hoss & King for respondent.
Case Date:June 25, 1895
Court:Supreme Court of Missouri
 
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Page 339

30 S.W. 339 (Mo. 1895)

129 Mo. 362

Kelsay

v.

The Missouri Pacific Railway Company, Appellant

Supreme Court of Missouri, First Division

June 25, 1895

Appeal from Vernon Circuit Court. -- Hon. D. P. Stratton, Judge.

Reversed.

R. T. Railey for appellant.

(1) The first count of the petition fails to state a cause of action, pleads only a legal conclusion. Pier v. Heinrichoffen, 52 Mo. 336; Waldhier v. Railroad, 71 Mo. 516; Harrison v. Railroad, 74 Mo. 369; Nichols v. Larkin, 79 Mo. 271; Gurley v. Railroad, 93 Mo. 450. (2) The court should have sustained a demurrer to the evidence on the first count. (3) If plaintiff relied on a violation of Revised Statutes, 1889, section 2608, requiring defendant to ring its bell and sound the whistle of its locomotive when approaching a crossing. Emerson v. Railroad, 111 Mo. 161; Reynolds v. Railroad, 85 Mo. 94. (4) Plaintiff's instruction number 2 should not have been given. The second count of the petition also fails to state a cause of action. The allegation as to defendant's neglect of duty in regard to the embankments and weeds do not give the plaintiff any right of action against defendant. Rutledge v. Railroad, 110 Mo. 332; Julia Bldg. Ass'n v. Telephone Co., 88 Mo. 273; Mfg. Co. v. Railroad, 113 Mo. 309; Welsch v. Railroad, 72 Mo. 452; Seibert v. Railroad, 72 Mo. 566; Turner v. Thomas, 71 Mo. 596; Hughes v. Railroad, 66 Mo. 325; Lafferty v. Railroad, 44 Mo. 292; Cordell v. Railroad, 70 N.Y. 119; Railroad v. Feller, 84 Pa. St. 226. (5) The damages are excessive. To entitle plaintiff to recover present damages for apprehended future consequences there must be such a degree of probability of their occurring as amounts to a reasonable certainty that they will result from the original injury. Strohm v. Railroad, 96 N.Y. 306; Curtis v. Railroad, 18 N.Y. 542; Fry v. Railroad, 45 Iowa 416; White v. Railroad, 18 Am. and Eng. R. R. Cases (Wis.), 215; 1 Sedgwick on Damages [8 Ed.], sec. 172; Railroad v. Henry, 62 Ill. 142; DeCosta v. Co., 17 Cal. 613. (6) The undisputed evidence shows plaintiff was guilty of contributory negligence precluding her recovery. It having been the duty of the plaintiff to look and listen for the approach of the train, it is immaterial whether she saw it or not, provided she could have done so by the exercise of ordinary care upon her part. In other words, "the means of knowing by ordinary care is evidence of knowledge." Muldowney v. Railroad, 39 Iowa 620; Speck v. Riggin, 40 Mo. 405; Rhodes v. Outcalt, 48 Mo. 370; Hulett v. Railroad, 67 Mo. 240; Mason v. Black, 87 Mo. 342; Jackson v. Railroad, 104 Mo. 459.

Hoss & King for respondent.

(1) The first count stated a good cause of action. Sullivan v. Railroad, 97 Mo. 113; Pope v. Railroad, 99 Mo. 400; Schneider v. Railroad, 75 Mo. 295; Goodwin v. Railroad, 75 Mo. 73; Owens v. Railroad, 58 Mo. 386; Braxton v. Railroad, 77 Mo. 455; Minter v. Railroad, 82 Mo. 128; Ravenscraft v. Railroad, 27 Mo.App. 622; Barr v. Railroad, 30 Mo.App. 251; Boom v. Railroad, 20 Mo.App. 232; Hill v. Railroad, 49 Mo.App. 520; Foster v. Railroad, 115 Mo. 177. (2) Plaintiff's instruction number 2 correctly stated the law. Kenney v. Railroad, 105 Mo. 270; Crumpley v. Railroad, 111 Mo. 152. (3) The question of negligence on the first count was one for the jury. Dickson v. Railroad, 104 Mo. 491; Murray v. Railroad, 101 Mo. 242; Weller v. Railroad, 120 Mo. 635; Kenney v. Railroad, 105 Mo. 270; Gratiot v. Railroad, 116 Mo. 450. (3) And even if defendant's testimony entirely disproves and overthrows plaintiff's testimony, still the plaintiff is entitled to have the judgment of the jury on the credibility of defendant's witnesses and the value of their testimony. Boom v. Railroad, 20 Mo.App. 232; Wilburn v. Railroad, 48 Mo.App. 224. (4) The second count of the petition stated a cause of action. It is actionable negligence on the part of defendant to permit weeds to so grow upon its right of way as to obscure the sight of an approaching train, and that the weeds in this case, having not been cut during the summer previous to this accident, did obscure the approach of a train from the southeast, so that the crossing became absolutely dangerous, is beyond controversy. Rapp v. Railroad, 106 Mo. 423; Moberly v. Railroad, 17 Mo.App. 518; Railroad v. Barr, 31 Ill.App. 57; Richardson v. Railroad, 45 N.Y. 846; 4 Am. and Eng. Encyclopedia of Law, p. 911, note 2; Mackay v. Railroad, 35 N.Y. 75. (5) The plaintiff was not guilty of contributory negligence so as to bar her recovery. (6) The damages were not excessive. (7) The evidence in this case shows permanent injuries, and if there was any evidence tending to show permanent or continuous injury, it was a question to be submitted to the jury. Beck v. Dowell, 40 Mo.App. 71; Railroad v. Barron, 5 Wall. 90; Stevens v. Railroad, 96 Mo. 207; Nagel v. Railroad, 75 Mo. 653; Kerr v. Frogue, 5 Am. Rep. 146; Stutz v. Railroad, 73 Wis. 147; Eddy v. Wallace, 49 F. 801.

OPINION

[129 Mo. 365] Macfarlane, J.

Plaintiff sues for damages on account of personal injuries by being struck by a train of defendant, on a public crossing in Vernon county. The petition is in two counts. The first charges negligence generally in running and managing the train. The second charges negligence in permitting an embankment to remain upon its right of way and suffering weeds to grow thereon, thus obstructing plaintiff's view of the track as she approached it. The answer is a general denial and a plea of contributory negligence. The plea charges that plaintiff negligently drove upon the track without taking any precaution to ascertain whether the train was approaching.

A trial resulted in a judgment

Page 340

for plaintiff for $ 6,000 from which defendant appealed.

On the trial defendant objected to the introduction of any evidence, on the ground that neither count of the petition stated facts sufficient to constitute a cause of action. The objection to the first count was that a mere general charge of negligence was not a statement of facts required by the code. To the second count the objection was...

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