Fuller v. Atchison, Topeka & Santa Fe R. Co.

Decision Date26 April 1904
PartiesFULLER, Appellant, v. ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY, Respondent
CourtMissouri Court of Appeals

Appeal from Clark Circuit Court.--Hon. E. R. McKee, Judge.

Judgment affirmed.

O. S. & G. M. Callihan for appellant.

Plaintiff's petition certainly states a cause of action against defendant. The facts stated and proven show that defendant's wrongful act in so constructing its roadbed as to compel travel on the public highway to pass through the arch it had built over a ravine, that is practically a watercourse, and its negligence and omission in permitting the passageway to become obstructed, so that plaintiff was compelled to pursue the route she took to go over the embankment, was the proximate cause of her injuries, for which defendant is liable. Adams v. Railway, 100 Mo 560; Graney v. St. Louis, 141 Mo. 180; Clemens v. Railroad, 53 Mo. 370; Thompson on Negligence (2 Ed.) sec. 48.

Gardiner Lathrop, Samuel W. Moore, T. L. & S. J. Montgomery for respondent.

Even if defendant were under obligation to maintain and keep the alleged highway under its bridge or arch in suitable condition for travel, but failed to do so, and allowed it to become obstructed or impassable (which we deny), the same was not the proximate cause of plaintiff's injury, and she can not recover on account thereof. Thompson on Negligence sec. 81, p. 82; Hudson v. Railway, 101 Mo. 13; Stillson v. Railroad, 67 Mo. 671; Brown v. Railway, 20 Mo.App. 222; Jackson v. Railway, 13 Lea 491, 49 Am. 663; Farnum v. Concord, 2 N.H. 392; Hyde v. Jamaica, 27 Vt. 443; Stone v. Attleborough, 140 Mass. 328; Sullivan v. Boston, 126 Mass. 540; Railway v. Kelly (Tex.), 78 S.W. 372; Day v. Crossman, 1 Hun 570; Jenks v. Inhabitants, 11 Gray 142; Tutein v. Hurley, 98 Mass. 211; Glenn v. Railway, 21 S. S. 466; Cox v. Railroad, 102 Iowa 711; Evans, etc., Co. v. Railroad, 17 Mo.App. 624; Henry v. Railroad, 76 Mo. 293; Mathiason v. Mayer, 90 Mo. 585; Harlen v. Railroad, 65 Mo. --; Wallace v. Oil Co., 66 F. 260.

GOODE, J. Bland, P. J., and Reyburn, J., concur.

OPINION

GOODE, J.

In 1896 the defendant railroad company built an arched stone bridge about one hundred and fifty feet long to carry its track across a ravine through which ran a stream of water and a public highway. Previous to the construction of the arch the track had run on a trestle about three hundred feet long over the ravine. The stream and the public road then ran parallel to each other and about two hundred feet apart. The railway track ran east and west and the hollow north and south. Because the bridge was about half as long as the trestle had been, it was necessary to throw up an embankment to support the railroad at either end of the arch, and this was done. As a consequence the public road was obstructed where it had previously run and diverted to run under the arch and people thereafter travelled along that route.

In March, 1901, when the accident to the plaintiff occurred, the creek under the arch froze over and became blocked with ice, so that the water stood over the road and rendered it impassable. Because this condition often existed the people who lived in the neighborhood were accustomed, when travelling on foot, to go over the embankment at the east side of the bridge and across the railway track instead of going under the arch. One Sunday night when plaintiff was returning from church, she attempted to descend the path on the side of the dump and while doing so fell to the bottom of the hollow and was severely hurt. This action was instituted to recover for the injury, but resulted in a verdict for the defendant.

The only negligence charged against the railway company is a disregard of its duty to keep a safe and convenient public road under the arch. The petition charges that it (the defendant) had "negligently permitted the bottom of said arch to become covered with large rocks and boulders; that the water in said ravine had, as aforesaid, carried into it water, and ice to the depth of two feet had collected and accumulated in said arch, which, with the said large rocks and boulders that defendant had, as aforesaid negligently permitted to accumulate and remain in said arch, rendered the same impassable, and that said condition of said arch had existed for several weeks prior to said third day of March, and was known to defendant or could have been so known by the exercise of ordinary care or diligence. Plaintiff states that on said third day of March, 1901, while returning on foot from said Dumas station...

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