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

• Decision Date: 21 December 1889
• Citation: 99 Mo. 310,12 S.W. 655
• Court: Missouri Supreme Court
• Parties: BROWN et ux. v. HANNIBAL & ST. J. R. CO.

12 S.W. 655

99 Mo. 310

BROWN et ux. v. HANNIBAL & ST. J. R. CO.

Supreme Court of Missouri.

December 21, 1889.

RAILROAD COMPANIES — DEFECTIVE CROSSINGS — DAMAGES — PLEADING — AMOUNT.

1. Where the evidence shows that an obstruction on the north side of one approach to a railroad crossing made it necessary to drive close to the south side, and that on the south side of the other approach, which was not in line with the former, but swung to the north, the planks extended over the embankment about 18 inches, the traveled track being only about a foot from the brink over which plaintiff was precipitated, the issue as to defective crossing is properly left to the jury, in an action for the injuries caused thereby.

2. An instruction that it was defendant's duty to maintain a crossing which would be "reasonably safe and convenient" is not erroneous, nor a departure from a petition alleging failure to maintain "a good and sufficient crossing."

3. An instruction that "it is not sufficient that the crossing is so constructed that it is possible to safely pass over it, but it should be so constructed and maintained in such condition as to be reasonably safe and convenient for public travel by persons exercising ordinary care," is correct, and not argumentative.

4. An instruction that the crossing should be "reasonably safe and convenient" is not inconsistent with one that it should be "reasonably safe."

5. Under an allegation of bodily injuries, plaintiff may recover for physical pain and mental anguish, though not stated in the petition.

6. Verdict for $2,725 is not excessive for injuries which produced pains in the back, loss of memory, paralysis in one side for three weeks, and some hemorrhage, with a tendency to miscarriage; the plaintiff being pregnant at the time, and still suffering occasional pains in her sides and legs.

Appeal from circuit court, Clinton county; JAS. M. SANDUSKY, Judge.

Strong & Mosman, for appellant. Thos. J. Porter, for respondents.

BLACK, J.

This is a suit by a married woman to recover damages for injuries sustained by reason of a defective crossing at a point where a public road crosses the defendant's track. She and her husband were moving with two teams, and passed over this crossing from the east to the west. The husband drove the forward team, and she followed, driving the other. She says she was looking at the road at the time, and drove in the traveled track, and had a gentle team. She passed over the east approach; and, just as she passed over the track, the wagon turned over the south embankment. The east approach curves a little to the south, is about 6 feet high at the track, 10 feet wide, and 20 feet long. The west approach is about the same height, 16 feet wide, and 25 feet long. The plaintiff's evidence tends to show that by reason of some obstructions on the north side of the east approach the travel is diverted to the south side of that approach; that the south sides of the approaches are not in line, the one on the west being 4 or 5 feet north of the other; that the planks on the west side projected over the south edge of the embankment 18 or 20 inches; that the traveled track on that side of the railroad track was close to the brink, and, to cross with perfect safety, it would be necessary to turn north when on the railroad track, and pass over the ties, where the way was not prepared for travel. The road overseer says he called the attention of the defendant's road-master to the crossing, and requested him to fix it before the accident in question. The defendant's evidence tends to show that the crossing had been used for 18 years without accident, and that it could be crossed without danger, by the use of ordinary care. At the request of the plaintiff, the court gave two instructions, which, omitting some unimportant matters, are as follows: "(1) It was the duty of defendant to construct and maintain a crossing, and approaches thereto, at said place, which would be reasonably safe and convenient for public travel; and, if the jury believe from the evidence that defendant failed to construct and maintain such crossing and approaches at said place, and that the plaintiff, without fault or negligence on her part, had her wagon overturned in consequence of such crossings and approaches being insufficient, and not reasonably safe and convenient for public travel, whereby said plaintiff received the injury complained of, the jury should find for plaintiff." "(3) The court instructs the jury that it is not sufficient that the crossing is so constructed that it is possible to safely pass over it, but it should be so constructed and maintained in such condition as to be reasonably safe and convenient for public travel, by persons exercising ordinary care." The following, among others, was given at the request of defendant: "(3) The defendant was not required to make the crossing, or the approaches thereto, absolutely safe for persons using them. The defendant's duty was to so construct the crossing and approaches as to make the crossing reasonably safe to persons using ordinary care; and if the jury believe from the evidence that they were in such condition on the 4th day of November, 1883, they must find for the defendant."

1. While there is evidence...