Albright v. Louisiana & M. R. R. Co.

• Decision Date: 08 July 1946
• Docket Number: 39767
• Parties: Francis Albright v. Louisiana & Missouri River Railroad Company, Appellant
• Court: Missouri Supreme Court

195 S.W.2d 648

355 Mo. 211

Francis Albright v. Louisiana & Missouri River Railroad Company, Appellant

No. 39767

Supreme Court of Missouri

July 8, 1946

Appeal from Audrain Circuit Court; Hon. Frank Hollingsworth, Judge.

Reversed.

A C. Whitson and Charles M. Miller for appellant.

(1) The evidence conclusively shows that West Liberty Street, where the improvements were made was a public street in the City of Mexico and that the Alton Railroad Company was charged, as an abutting property owner, the sum of $ 1,461.44, for the improvement of Liberty Street and there was no duty or obligation in law on the part of the Alton Railroad Company or the defendant, to maintain the sidewalk at a point 12 or 14 feet west of the west rail of the railroad track. Tarr v. St. Louis, 235 Mo.App. 1026, 148 S.W.2d 100; Secs 6952, 6955, 6960, 6978, 6987, 6996, R.S. 1939, which were applicable to the City of Mexico, it being a city of the third class. (2) The evidence conclusively shows that West Liberty Street, where the improvements were made, was a public street in the City of Mexico, and that the City of Mexico had control of the sidewalk at the place in question and that in no event was the Alton Railroad or the defendant liable for the bridge or culvert or its condition. Lewis v. Kansas City, 233 Mo.App. 341, 122 S.W. 852; Walker v. Hines, 235 S.W. 831. (3) Plaintiffs given Instruction P 1 did not correctly declare the law by stating that the Alton Railroad Company and the Louisiana & Missouri River Railroad Company were under duty to maintain the sidewalk on the south side of Liberty Street at the place in question, for there was no such duty or obligation on the part of the railroads. At most, the railroads were only required to maintain the sidewalk over the railroad track. The instruction was further erroneous in reference to duty of the railroads to provide sufficient ditches and drains to prevent the overflow of water over the bridge or culvert. City of Higginsville ex rel. v. Alton Railroad Co., 171 S.W.2d 795; Secs. 5214, 5215, 5216, R.S. 1939; Resolution No. 1536; Ordinance No. 1544; Ordinance No. 1567 of the City of Mexico, Missouri, a City of the third class.

Kenneth Howe Sanford and J. W. Buffington for respondent.

(1) It is the statutory duty of all railroads to provide sufficient ditches and drains to dispose of water on its right of way so as not to injure any one or his property. Independence v. Mo. Pac. Ry. Co., 86 Mo.App. 585; Moberly v. Kansas City, St. Joseph & Council Bluffs Ry. Co., 17 Mo.App. 518; Lee v. St. Louis & S.F. Railroad Co., 150 Mo.App. 175, 129 S.W. 773; Zwicky v. Atchison, T. & S.F. Ry. Co., 164 Mo.App. 180, 138 S.W. 201, 105 A.L.R. 549; Sec. 5222, R.S. 1939. (2) The defendant company was liable for the defect in the sidewalk at the point where shown, towit, 12 feet West of the center line of the railroad track as it would be if the defect had occurred on the sidewalk between the rails. The statutory duty of a railroad is to maintain its approaches on and over its right of way to the track the same as it is its duty to maintain the crossing between the tracks. See authorities under Point (I); Sec. 5214, R.S. 1939. (3) Manifestly a railroad is liable for an unsafe and dangerous condition of any part of its approach on a public crossing where the dangerous condition is created by reason of the railroad's failure to properly drain the right of way, as well as if it negligently permits a bridge or covering to be inadequate for the passage of pedestrians or vehicles. Secs. 5214, 5222, R.S. 1939. (4) A railroad company is liable for a defective and dangerous condition which it permits to exist in its right of way where it crosses a public street, and the opinion of the St. Louis Court of Appeals holding to the contrary is in conflict with controlling opinions by this court. Cooper v. Davis, Director General, 310 Mo. 629, 276 S.W. 54; Crockett v. City of Mexico and Wabash Ry. Co., 336 Mo. 145, 77 S.W.2d 464. (5) The opinion overlooks and fails to show important and vital evidence, towit, the provisions of Section 4 of Ordinance 33 of the City of Mexico, Missouri. The evidence showing defendant had maintained the sidewalk crossing and recognized its liability therefor.

OPINION

Clark, C.J.

Respondent, as plaintiff, recovered a judgment for $ 3,000.00 as damages for personal injuries due to a fall from a footbridge along a sidewalk on defendant's right of way. On appeal the St. Louis Court of Appeals reversed the judgment. On respondent's application we have brought the case to this court for review and, although the application is based solely on alleged conflict with our previous decisions, we will determine the case as on original appeal. [Mo. Const. Art. 5, sec. 10; Supreme Court Rule 2.06.]

Liberty Street in Mexico, Missouri, is sixty feet wide, runs east and west and is crossed in a northerly and southerly direction by defendant's right of way. Both street and right of way are practically level. Along the south side of the street is a sidewalk, about four feet wide, which crosses a ditch or depression on defendant's right of way twelve feet from the center line of defendant's track. The sidewalk is made of cinders and formerly there was a twelve or fourteen inch galvanized iron pipe in the ditch covered with cinders to conform to the rest of the sidewalk. About four or five months before plaintiff was injured the city caused the central twenty-two feet of the street to be paved across the right of way, the south edge of the pavement being about fifteen feet from the north edge of the sidewalk. While the paving was in progress some of the workmen took the iron pipe from the ditch, dug the ditch somewhat deeper and placed a wooden platform across it with the ends resting on the dirt or cinders. There was evidence that in times of heavy rainfall water in the ditch rose to, and sometimes over, the platform and on several occasions washed the platform away from the sidewalk. On the night of the injury to plaintiff a rain had brought the water up to, but not over, the platform. Plaintiff, walking west along the sidewalk, stepped upon the platform which slipped forward and caused him to fall into the ditch.

The question here is: did the evidence support the charges of negligence submitted to the jury? Those charges were: (1) that defendant negligently failed to secure the boards covering the ditch; (2) that defendant violated its statutory duty under Section 5222 by failing to provide sufficient ditches and drains to prevent overflow of water on or about the footbridge, so that same was rendered insecure. [All references to statutes in this opinion are to sections in Revised Statutes Missouri 1939 and corresponding sections in Mo. R.S.A.]

Plaintiff claims that defendant had both a statutory and common law duty to maintain the footbridge, citing Sections 5222 and 5214, and the following cases: Independence v. Mo. Pac. Ry., 86 Mo.App. 585; Moberly v. Ry., 17 Mo.App. 518; Lee v. Ry., 150 Mo.App. 175, 129 S.W. 773; Zwicky v. A.T. & S.F. Ry., 164 Mo.App. 180, 148 S.W. 201, 105 A.L.R. 549; Cooper v. Davis, 310 Mo. 629, 276 S.W. 54; Crockett v. City et al., 336 Mo. 145, 77 S.W.2d 464.

Section 5222 makes it the duty of railroads to construct and maintain suitable ditches and drains to carry off the water, including surface water, whenever the draining of such water has been obstructed or rendered necessary by the construction of the railroad. The main purpose of this statute is to compel railroads, when they obstruct the natural drainage, to take steps to prevent the overflow of adjacent land, but whatever may be said about the purpose of the statute, it certainly has no application to the instant case. There is nothing in the record to show that plaintiff's injury was caused by insufficiency of the ditch. His position is that the footbridge slipped away from him because of the wet and slippery condition of the ground upon which the ends of the bridge rested. That condition must have been due to the rainfall upon the surface of the ground and not to the water in the ditch, for plaintiff's evidence shows that the water had not overflown the banks of the ditch.

Section 5214 requires a railroad to construct a good and sufficient crossing, not less than twenty-four feet in length and of a specified kind and with sufficient approaches, where it crosses a public road or street. There is nothing in this case to indicate that defendant failed to comply with this section or that plaintiff was injured by non-compliance. This section has nothing to do with the sidewalk where plaintiff was injured.

"This section [5214] applies only to railroad crossings and approaches thereto and not to rights of way outside of such crossings and approaches." [237 Mo.App. 1204, 171 S.W.2d 795, 803.]

Another section, 5215, authorizes the city by ordinance to...