Boland v. Thompson
| Decision Date | 02 July 1940 |
| Docket Number | No. 25383.,25383. |
| Citation | 142 S.W.2d 790 |
| Parties | BOLAND v. THOMPSON. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, St. Francois County; Taylor Smith, Judge.
"Not to be reported in State Reports."
Action by Clyde Boland, an infant, by Charles Boland, next friend, against Guy A. Thompson, trustee in bankruptcy for the Missouri-Illinois Railroad Company, for injuries sustained by plaintiff in a fall from a railroad embankment. Verdict for plaintiff for $2,000 which was reduced upon remittitur to $1,500, and from the judgment defendant appeals.
Judgment reversed.
Thomas J. Cole, General Attorney, of St. Louis, and Spradling & Strom, Dist. Atty., of Cape Girardeau, for appellant.
Osborn & McIlrath, of Flat River, for respondent.
SUTTON, Commissioner.
This is an action to recover damages for personal injuries sustained by plaintiff in a fall from the embankment of a cut through which the track of the defendant railroad company runs, in the city of Flat River, St. Francois County, Missouri.
The trial, with a jury, resulted in a verdict in favor of plaintiff for $2,000. There was a remittitur for $500, and judgment was accordingly given for $1,500. Defendant appeals.
Defendant assigns error here for the refusal of his instruction in the nature of a demurrer to the evidence. He puts the assignment on the grounds (1) that the evidence fails to show any negligence on the part of defendant resulting in plaintiff's injury, and (2) that the evidence shows plaintiff guilty of contributory negligence as a matter of law.
Plaintiff urges that "the issue being that of negligence either on the part of defendant or on the part of plaintiff the question whether the facts constitute negligence was for the jury as to who was guilty of negligence directly contributing to the injury of plaintiff." The negligence charged and relied on by plaintiff is the failure of defendant to erect an adequate barrier across Buckley Street west of the railroad track.
Buckley Street runs east and west. The right of way of the street is sixty feet wide. The railroad track runs north and south.
It was admitted at the trial that there was an overhead bridge constructed by the National Lead Company over the railroad cut at Buckley Street prior to 1921 with the consent of the railroad company, but at the cost and expense of the National Lead Company, and for its own use, and to connect its own properties; that during all the time that said overhead bridge was maintained, it was maintained by and at the sole cost and expense of the National Lead Company; that during all the time that said bridge was open and used by the National Lead Company it was also used by the public and with the full knowledge, acquiescence, and consent of the National Lead Company; that in 1933 the National Lead Company ceased to maintain or repair said bridge and it became dangerous, unsafe, and generally out of repair; that in 1933 said bridge was barricaded at each end to prevent its use as a crossing on account of the fact that it was dangerous and unsafe for use by the public for either pedestrians or other traffic; that in 1933 said bridge became a hazard to the operation of the railroad company under the same, its timbers being decayed and said bridge being generally out of repair, and thereupon said overhead bridge was removed and certain barricades were erected across the traveled portion of the street at each side of where the bridge was formerly located; that said bridge was constructed over and across said railroad track at a deep cut; that the same was constructed and was later removed without any permission from the Public Service Commission of Missouri; that no permission was sought or obtained from the Public Service Commission for the construction or for the removal of said bridge.
The cut where the bridge had been located was about ten feet deep from the top of the embankment on the west side of the track. The bridge was condemned in 1933 and barricaded with barbed wire at both ends. The wire extended from fence to fence. It was so barricaded at the time it was removed. When the bridge was removed there was a barrier placed across the traveled portion of Buckley Street on each side of the railroad cut. The barrier on the west side of the cut consisted of two planks 16 feet long, 10 inches wide, and 2½ inches thick, nailed to three posts. The barrier was 3½ feet high. The traveled portion of the road consisted of a chat fill 2 or 3 feet high. This chat fill extended 5 or 6 feet to the east of the barrier. From the end of this fill out to the concrete abutment on which the west end of the bridge rested was about 18 or 20 feet. It was from 20 to 22 feet from the abutment to the edge of the cut. It was about 46 feet from the barrier to the edge of the cut. The surface sloped off from the chat fill to the edge of the cut. There were loose rocks and weeds and underbrush in this space. The surface was uneven and rough. The barrier extended across the chat fill west of where the bridge had been located.
Several photographs taken a few days after the accident show a heavy growth of weeds and underbrush along the north side of the traveled portion of the street and between the barrier and the railroad cut, and all over the unimproved portion of the right of way. One of these photographs shows the plaintiff standing in the weeds at the north end of the barrier with his arm in a sling. The weeds extended up to and overlapped the north end of the barrier. The photographs also show the barrier extended entirely across the chat fill or traveled portion of the street.
Highway No. 32 runs north and south just east of and parallel with the railroad, intersecting Buckley Street just east of where the overhead bridge was located. There is a road running north and south parallel with the railroad, intersecting Buckley Street just west of the barrier.
The bridge was condemned and barricaded some time before it was removed. The city of Flat River refused to repair the bridge or do anything about it.
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