Braden v. Chicago Burlington & Quincy Railroad Co.
| Decision Date | 03 November 1913 |
| Citation | 161 S.W. 279,174 Mo.App. 584 |
| Parties | ROBERT E. BRADEN, Respondent, v. CHICAGO BURLINGTON & QUINCY RAILROAD CO., Appellant |
| Court | Kansas Court of Appeals |
Appeal from Livingston Circuit Court.--Hon. Arch B. Davis, Judge.
REVERSED.
Judgment reversed.
O. M Spencer, Frank Sheetz, Maurice Roberts for appellant.
Paul D Kitt for respondent.
Plaintiff, a farmer, was employed by a section foreman of defendant in August, 1910, to cut weeds and grass on defendant's right of way for a distance of about three-quarters of a mile west from Utica station. He was to use his team and mowing machine where it was practicable and to cut the remainder by hand. One of the section men accompanied him. After working with his machine until near the close of the first day, one of the horses fell into a ditch on the right of way and was so injured that he had to be killed.
Plaintiff sued in a justice court to recover the value of the horse on the ground that its death was caused by defendant's negligent breach of a duty to warn him of the ditch, the presence of which, plaintiff contends, was concealed by a very thick and rank growth of weeds. The cause was tried in the circuit court without the aid of a jury and resulted in a judgment for plaintiff. Defendant appealed.
The evidence consisted of the testimony of plaintiff and his companion, the section hand who was sent by defendant to help him. While driving the mowing machine westward on the south side of the railroad they came to a natural drainage ditch that crossed the right of way from southeast to northwest and crossed under the track through a culvert. The track was on an embankment that was, perhaps, sixteen feet high, perpendicular measure, and had sloping sides. The ditch was about six feet wide and six feet deep. Although, as stated, the weeds were very thick, plaintiff says he observed the ditch when he was forty feet from it and got off of the machine and went forward on foot to see if he could drive the team and mower across it. Another natural drainage ditch about two and one-half feet wide and two and one-half feet deep coming from the west on a course parallel to the embankment, emptied into the larger ditch at a point estimated by plaintiff as being twelve or fourteen feet and by the helper as being six feet south of the culvert. Plaintiff states that he did not discover this small ditch on account of the weeds and drove across the larger one without knowing of its presence. His team crossed at a place just north of the small ditch and his machine had just reached the top of the west bank when the near horse fell and landed on his back in the small ditch where he remained until the next morning. His injuries were so severe that plaintiff decided to kill him. Plaintiff testified that he did not know what caused the horse to fall but founds his action on the inference that it stepped or slipped into the concealed ditch. The helper's version of the injury differs materially from plaintiff's and gives a plausible reason for the accident. He states that plaintiff knew of the presence of the small ditch and attempted to drive across to the tongue of land lying between the embankment and the small ditch and that as the machine was ascending the west bank the off horse shied at the culvert and pushed the near horse over into the small ditch.
If we were sitting as triers of fact we would accept the statement of the helper as being more in accord with the conceded physical facts than that of plaintiff. It is difficult to believe that plaintiff could not and did not see the mouth of the small ditch and the break in the weeds that must have been plainly marked by its course if, as he states, he could see the large ditch forty feet away and made a careful inspection to determine...
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