Nixon v. Hannibal & St. J. R. Co.

• Decision Date: 23 November 1897
• Citation: 42 S.W. 942,141 Mo. 425
• Court: Missouri Supreme Court
• Parties: NIXON v. HANNIBAL & ST. J. R. CO.

42 S.W. 942

141 Mo. 425

NIXON v. HANNIBAL & ST. J. R. CO.

Supreme Court of Missouri, Division No. 1.

November 23, 1897.

RAILROADS — DEFECTIVE CROSSINGS — CONTRIBUTORY NEGLIGENCE — NOTICE — INSTRUCTIONS.

1. The fact that a hole in a plank of a railroad crossing could have been seen and avoided had plaintiff particularly looked for it, and that he knew, 40 days before the accident, that a plank was loose, did not conclusively show contributory negligence in failing to see the defect.

2. While Rev. St. 1889, § 2609, in terms imposes an absolute and continuing duty on railroad companies in respect to maintaining crossings, no liability for injury occasioned by defects therein arises unless the company has had actual or constructive notice of the defects, and has failed, within a reasonable time thereafter, to repair them.

3. An instruction that defendant railroad company was bound "to have and keep such crossing in a safe condition" was erroneous, the company's duty being performed when it builds and maintains such a crossing as the statute prescribes, without regard to its effectiveness to constitute a safe crossing.

4. An erroneous instruction is presumptively prejudicial.

5. An instruction that plaintiff had a right to presume that a defect which he had noticed a month before the injury had been repaired was erroneous, in the absence of any evidence that, at the time of the accident, plaintiff acted on such presumption or thought anything about the defect.

6. Where plaintiff's evidence showed that the defect had existed for 40 days, and defendant's

foreman testified that he had nailed down a loose plank several days before the, accident, and that one day prior thereto he examined the crossing, and found no defect, it was error to instruct that, if the defect existed long enough for defendant to have discovered it by the exercise of reasonable care, "the law presumes" that it had notice thereof.

Appeal from circuit court, Caldwell county; E. J. Broaddus, Judge.

Action by William A. Nixon against the Hannibal & St. Joseph Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

Spencer & Mosman, Wm. Henry, and Turner & Hinton, for appellant. S. H. Corn and Johnson & Wait, for respondent.

MACFARLANE, J.

The action is to recover damages for injuries plaintiff sustained by reason of the alleged negligence of defendant in permitting a public road crossing of its railway to become defective and dangerous. The petition charges that a public road crossed defendant's railway two or three miles west of the town of Cameron; that it was the duty of defendant to have and maintain a good and sufficient crossing over said railroad, consisting of a plank of good and sound timber, not less than 16 feet in length, 10 inches in width, and 2 inches in thickness, securely spiked on each side of each rail of said railroad to the cross-ties thereof, and otherwise constructed and built for the convenient, safe, and proper use of the people traveling along said public road, and across said railroad; that said defendant, on the 26th day of August, 1894, "unmindful of its duty aforesaid, had, at the place aforesaid, negligently used plank only 12 feet in length in the construction of a crossing over its said railroad, and had carelessly and negligently permitted such crossing to become out of repair and dangerous, in that the timber in the plank was unsound, split, and decayed, and a portion of the plank on the west side of the east rail of said railroad was split off and detached, leaving an open space of at least 5 inches in width and 5 feet in length between said plank and said rail; that on the day and year aforesaid, to wit, on the 26th day of August, 1894, after nightfall of the said day, the plaintiff was traveling on horseback along said public road westward, and while crossing said railroad at the place aforesaid, and in the exercise of proper and ordinary care, his horse stepped into the space between the rail and plank aforesaid, and fell, and threw the plaintiff to the ground upon said railroad crossing, and, being so thrown, one of his feet became fastened in the stirrup of the saddle, and plaintiff was unable to release himself from the horse, and his horse's foot was so fastened in between the plank and rail aforesaid that he and the plaintiff were for a long time held and bound to the crossing aforesaid; that, after great efforts, the horse succeeded in pulling his foot from the rail and plank, and, being frightened and beyond control of the plaintiff, ran away, and dragged the plaintiff upon the ground." The injuries plaintiff suffered and the pecuniary losses and expenses he incurred are thereupon detailed, and judgment for $20,000 is prayed. The answer denies each allegation of the petition, and pleads contributory negligence. The evidence shows that the railroad crossing was originally constructed in the manner and of the material required by the statute, except that it may have been deficient in width, which is immaterial in this case, as such deficiency had nothing to do with the injury. A witness testified that on July 14, 1894, he drove over the crossing with plaintiff, and a plank in the crossing, between the rails, was broken and loose, and plaintiff's attention was then called to the dangerous condition of the crossing. These facts plaintiff admitted in giving his testimony. The evidence tends to prove that on the 26th of August, 1894, about five inches of a plank between the rails, and next to the east rail, had been split off, leaving a space or hole five inches wide and about five feet long between the remaining part of the plank and the east rail of defendant's track. This open space extended from about the center of the county road to near the south side of the crossing, leaving on the north side sufficient space to cross without passing over it. On said day, plaintiff, traveling west on horseback, at an ordinary gait, went upon the crossing in the beaten track, and the left forefoot of his horse was caught and became fastened in this open space. In attempting to extricate himself, the horse fell, and plaintiff was thrown from his seat to the ground, one foot becoming fastened in the stirrup. The horse, when freed, ran, dragging plaintiff 20 or 30 yards. In the disaster, plaintiff's thigh bone was broken. Plaintiff testified that the accident occurred about dusk. Other evidence tends to prove that It was about sunset. Plaintiff was asked if, when he went upon the crossing, he was paying any particular attention to the road. He answered: "No particular attention. I always pay attention crossing a railroad to see whether trains are coming." Defendant's section foreman testified that on Saturday he examined the crossing, and did not see the piece of plank that had been broken out or notice any defect. On Monday morning following, he found the defect, and repaired it. This was after plaintiff had been injured. He further testified: "I spiked that plank down at that crossing three or four days before the accident. I don't remember that the plank was split at that time, but there was a kind of weather crack in it, caused by the sun and weather."

At the request of plaintiff, the court gave to the jury the following instructions: "(1) The court declares the law to be that it was the duty of the defendant, at and prior to the time when it is claimed the plaintiff was hurt, to erect and maintain a railroad crossing at all points where its road crossed the public highway; and it was the defendant's duty to keep and maintain such crossing safe for the use of all persons to cross who, while crossing, should use reasonable care and caution in crossing over the same; and if any person, while in the exercise of reasonable care and prudence, be injured by the failure to have and keep such crossing in safe condition, then the defendant would be liable for such injury. (2) `Reasonable care,' as used in these instructions, means such care and caution as a reasonably prudent person would have used under such or like circumstances. (3) If the jury believe from a preponderance of the evidence in this case that the defect in the railroad crossing in question caused the injury which the plaintiff claims to have sustained, and that such defect had existed long enough for the defendant to have discovered it by the exercise of reasonable care on the part of its officers and employés, then the law presumes that the defendant had notice of such defect; and the jury will find for the plaintiff if they further find that plaintiff, at and just before the injury, was exercising such...