Eisenberg v. Missouri Pac. Ry. Co.

• Decision Date: 27 November 1888
• Parties: JOHN EISENBERG, Respondent, v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
• Court: Missouri Court of Appeals

33 Mo.App. 85

JOHN EISENBERG, Respondent, v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant.

Court of Appeals of Missouri, St. Louis.

November 27, 1888

Appeal from the St. Louis City Circuit Court. --HON. SHEPARD BARCLAY, Judge.

REVERSED.

Henry G. Herbel, for the appellant.

The court erred in admitting incompetent and irrelevant evidence offered by the plaintiff. Hipsley v. Railroad, 88 Mo. 351; Ely v. Railroad, 77 Mo. 34. The court erred in refusing the instruction, in the nature of a demurrer to the evidence, asked by the defendant at the close of plaintiff's case. Railroad v. Houston 95 U.S. 702; Gadstein v. Railroad, 46 Wis. 406; Achtenhagen v. City, 18 Wis. 331; Wilson v City, 8 Allen 138; Durgin v. City, 61 Barb. 427; Railroad v. Adams, 19 Am. & Eng. Ry Cas. 380. The court erred in refusing to give proper and legal instructions asked by defendant. The court erred in giving illegal and improper instructions to the jury at the instance of plaintiff and of its own motion. Cathcart v. Railroad, 19 Mo.App. 114; Matthews v. Railroad, 26 Mo.App. 89; Stoher v. Railroad, 91 Mo. 509; Evans v. Railroad, 21 Mo.App. 656; Smotherman v. Railroad, 29 Mo.App. 268; Milburn v. Railroad, 86 Mo. 109; Davis v. Railroad, 89 Mo. 350; Union Pac. Railroad v. Adams, 19 Am. & . Eng. Ry. Cas. 378; Buesching v. Gas Co. 73 Mo. 221; Nichols v. Winfrey, 79 Mo. 551; Evans v. Railroad, 16 Mo.App. 525; Railroad v. Houston, 95 U.S. 703.

A. R. Taylor, for the respondent.

The plaintiff Eisenberg testified that he had driven along there and had rested his team without suffering mishap. In other words, the danger was unknown to the driver, i. e., the danger of his horse stalling and being dragged into the abyss. So it is submitted under the cases in Missouri, that the question as to whether the driver was using ordinary care was one for the jury. The property-owner who invites his patron to go over his grounds on business with him is bound to use ordinary care to have such grounds in a reasonably safe condition. Welch v. McAllister, 15 Mo.App. 492; Carraway v. Long, 7 Mo.App. 595. The traveler or invited person is not bound to leave the road because an excavation has negligently been left open, unless it would be inconsistent with ordinary care to so use the road. Buesching v. Gas Co. 73 Mo. 232. And the traveler may recover, notwithstanding his knowledge of the nuisance providing he was exercising ordinary care. Smith v. City, 45 Mo. 449; Thompson on Neg. sec. 1203.

OPINION

ROMBAUER P. J.

The plaintiff's petition states in substance that the defendant is a railroad corporation, and was, at the date of the grievance complained of, the owner of a certain lot in the city of St. Louis; that over and across said lot the defendant had for years maintained a road for the use of its patrons; that upon said lot near said railroad there was a deep hole or excavation which the defendant carelessly and negligently suffered to remain unguarded and unfenced; that the plaintiff's team using said roadway by defendant's invitation, owing to the unguarded condition of the roadway, fell into the excavation whereby one of the horses was killed, another crippled, and the plaintiff's wagon and harness destroyed. The petition further states that it was provided by an ordinance of the city of St. Louis then in force " that all holes, depressions, excavations or other dangerous places within the city of St. Louis, that are below the natural or artificial grades of the surrounding or adjacent streets, shall be properly inclosed with fences or walls, or be filled up, so as to prevent persons or animals from falling into them," and that said hole or excavation was below the natural level of the adjacent or surrounding streets, and was dangerous, yet the defendant failed to enclose the same with a fence or wall or fill the same, which said violation of the ordinance directly contributed to cause the injury to plaintiff. The defendant's answer was a general denial and the plea of contributory negligence.

On the trial of the cause before a jury the following facts appeared by plaintiff's evidence: The defendant is a railroad corporation and its depot grounds are at considerable depth below the level of Eighteenth street or Tayon avenue. Several years before the accident a road was constructed, it does not distinctly appear by whom, leading from the depot grounds to Tayon avenue, which road prior to the accident was improved by the defendant, and was traveled by teams hauling freight from defendant's cars. This road ran almost parallel to Tayon avenue, and had a very steep incline, in some parts as much as eight inches to the foot. It was bordered on the east by the stone abutment of the Tayonavenue bridge, and on the west by an old quarry-hole, more than forty feet deep, and unfenced. The hole was fenced on its eastern side where it adjoined Tayon avenue, leaving this roadway open. The ground at the point of junction of the two roads was owned by other parties than defendant.

On the day of the accident two teams belonging to the plaintiff were hauling crushed granite from the defendant's depot grounds and using this road for reaching Tayon avenue. Each team had two horses, and were loaded with a weight of about two tons, and neither wagon had a brake. When they started with their loads the following conversation occurred between the driver of the injured team, and the driver who preceded him, according to the testimony of the latter, who was an uncontradicted witness for the plaintiff: " I says, I am going up this way again, up this road. He says, ‘ I am going up that way too, because I have been up this morning, I am going up that way too.’ The road was pretty rough. I said, ‘ if the team can make it, all right; I don't think they can make it.'

Q. You told him you did not think the team could make it? A. Yes, sir. Just at that time, but he came on up.

Q. He decided to do it, did he? A. Yes, sir, he had been up before, he hauled two loads before I did this morning.

Q. You thought he couldn't get up there this time did you? A. I didn't know whether he would or not.

Q. He had been talking about it? A. Yes, sir.

Q. Talking about his prospect of getting up there? A. Yes, sir; I had an extra team. I knew he could not follow me sure as shooting."

After the conversation, the two teams started, and the second team when part way up the incline, stopped, commenced backing, and the horses and team were precipitated into the hole, and almost wholly destroyed, causing the loss sued for. The plaintiff also gave in evidence the ordinance of the city of St. Louis, set out in the petition, which was objected to by the defendant as irrelevant, but admitted by the court and read to the jury, the defendant excepting. At the close of...