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

• Decision Date: 24 October 1887
• Citation: 27 Mo.App. 394
• Parties: JAMES BROWN, Respondent, v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.
• Court: Kansas Court of Appeals

27 Mo.App. 394

JAMES BROWN, Respondent, v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.

Court of Appeals of Missouri, Kansas City.

October 24, 1887

APPEAL from Clinton Circuit Court, HON. JAMES M. SANDUSKY, Judge.

Affirmed.

The case and facts are stated in the opinion of the court.

THOMAS E. TURNEY, and STRONG & MOSMAN, for the appellant.

I. Defendant was not charged with having placed the salt on the track. It was not bound to suspect or anticipate that a stranger would place it there. There is no evidence that defendant's servants knew that the salt was on the track. Crafton v. Railroad, 55 Mo. 580; Schooling v Railroad, 75 Mo. 518; Harlan v. Railroad, 18 Mo.App. 483; Gilliland v. Railroad, 19 Mo.App. 411. (1) The court erred in giving the first instruction prayed by plaintiff. Wood on Ry. Law, 1561, and cases cited; Clardy v. Railroad, 73 Mo. 576; Fitterling v Railroad, 79 Mo. 504; Case v. Railroad, 75 Mo 568. This is not analogous to the rule requiring fences to be kept in repair. (2) The instruction fails to tell the jury that plaintiff could not recover if his own negligence contributed to the injury. McCormack v. Railroad, 47 Iowa 345; Sullivan v. Railroad, 88 Mo. 169. The evidence clearly made out contributory negligence of plaintiff. Plaintiff's own testimony proves it. Gilson v. Railroad, 76 Mo. 282; Buesching v. Gas Co., 73 Mo. 219; Milburn v. Railroad, 86 Mo. 104. (3) The court erred in giving plaintiff's second instruction. It imposed the same degree of provision and care as a duty of defendant, as in cases for damage by reason of neglect of duties imposed by statute, and not growing out of its duties as a common carrier. This is not the law.

II. The court erred in refusing defendant's instruction. There was no proof of negligence. Railroad v. Kenney, 41 Mo. 271; Gormley v. Railroad, -- Mo. ___; Judd v. Railroad, 23 Mo.App. 56; Buesching v. Gas Co., supra; Goddard v. Railroad, 54 Wis. 548.

III. The plaintiff, according to his own testimony, was guilty of gross contributory negligence. Wood on Railways, 1555, and note; Nolan v. Shickle, 69 Mo. 340; Milburn v. Railroad, 86 Mo. 104; Knight v. Railroad, 24 Ind. 402.

IV. The evidence showed that the horse was killed by a train controlled by the Chicago, Rock Island & Pacific Railway Company, and not by defendant's train men. The action should have been brought under section 790, Revised Statutes. See Main v. Railroad, 18 Mo.App. 388.

V. The motions for new trial and in arrest of judgment should have been sustained. Main case, supra; Rev. Stat., sect. 790.

JAMES M. RILEY and ROLAND HUGHES, for the respondent.

I. The case of Main v. Railroad, relied on by appellant, is not an authority here, for two reasons. In that case the Hannibal & St. Joseph Railroad Company was sought to be made liable solely for the negligence of the employes of the Chicago, Rock Island & Pacific Railroad Company running a train on the Hannibal track. In the case at bar, it is the negligence of defendant that furnishes the ground of recovery, in not removing the temptation to stock to congregate on the track. There is no evidence here of any dereliction of duty on the part of employes in charge of the Chicago, Rock Island & Pacific train. Whatever may be in pleadings, there is nothing in evidence and instruction on that point. Besides the Main case (supra ), is not law, and was ill considered. There was no brief in for respondent in that case, and no authority cited by appellant for the position assumed. And the case was decided on the assumption that, but for section 790, Revised Statutes, there could be no liability against the lessor of a railway for negligence of a lessee. Whereas, the reverse of that proposition is the law. Patterson's Railway Accident Law, p. 132, bk. 2, chap. 4, sect. 130, and authorities cited; 17 Wol. 445. This principle is involved in Speed v. Railroad (71 Mo. 303).

II. The case of Sullivan v. Railroad (80 Mo. 169), only decides that when the pleadings raise the issue of contributory negligence, it is error to submit case on instructions which do not confine plaintiff's right of recovery to a state of facts which show him to be free from any negligence contributing to the injury. But the pleadings in this case do not raise the issue of contributory negligence, and will not justify an instruction on that point unless the plaintiff's own evidence shows his contributory negligence, in which case it was the duty of defendant to ask the instruction, and, failing to do so, he cannot now be heard to complain on that ground.

III. The plaintiff was not guilty of contributory negligence. Milburn v. Railroad, 86 Mo. 104. While this case is cited by appellant, it is an authority against it. Nor is the case of Nolan v. Shickle (69 Mo. 340), an authority in its favor. Crafton v. Railroad, 55 Mo. 580; Donovan v. Railroad, 89 Mo. 147. It was negligence to leave salt on the track. Schooling v. Railroad, 75 Mo. 518. It was only necessary to show that it was there in such quantities, and under such circumstances, and for such a length of time, as that they must have known of its presence by the exercise of ordinary diligence. Crane v. Railroad, 87 Mo. 588.

ELLISON J.

This action is for single damages for killing plaintiff's horse in the village of Turney. Plaintiff recovered and defendant appeals.

I. The negligence charged and relied upon is, that defendant allowed quantities of salt to be deposited on and near its track, at or near the station, and allowed the same to remain so deposited after it knew the salt was there, or, by reasonable care and diligence, might have known it; that, by reason of this alleged negligence, plaintiff's horse was attracted on the track of defendant's railway and killed. The answer was a general denial. At the close of plaintiff's case defendant offered a demurrer to the testimony, which was refused by the court.

The defence urged before us is, that the evidence fails to show negligence on the part of defendant, and that it does show contributory negligence on part of plaintiff.

The evidence fails to disclose how or when the salt got upon the track, or who put it there. It does show, however, that the salt was on the track " at the edge of the depot platform; " that the horse was killed about eight o'clock in the evening, and that the salt was seen on the track as early as ten o'clock on the morning of the day before; the salt was on the ends of the ties and scattered between them; horses had been seen at this salt the afternoon of the accident; the section men loaded and unloaded their tools about a quarter of a mile south of the depot, and they worked both north and south of the depot; they were seen to pass over the track where the salt was, on the day the horse was killed. The evidence further showed it to be the duty of the section men to keep the track clear of anything which would attract stock.

Defendant introduced no testimony, and the court gave for plaintiff an instruction submitting the question, whether defendant knew of the salt being on the track, " and failed, within a reasonable time thereafter, to remove the same, or believe that such salt had been there for such a length of time that the defendant, in the exercise of ordinary care, ought to have known of its presence on the track, and failed, within a reasonable time thereafter, to remove the same."

Believing the evidence justified the court in submitting the question to the jury as presented in this instruction, it follows that defendant's demurrer was properly refused. The fact that the salt was seen on the track the day before the accident; that it was at the depot where defendant's agent or other employes are in attendance; that stock had been seen at this salt, and that defendant's section men passed over it; that others saw salt at this place and could discover where stock had been licking it, was evidence justifying the instruction given by the court.

II. Defendant contends there was contributory negligence in the case, as the evidence showed plaintiff lived in the village and that he turned his horse out about " a half-hour before he was killed," knowing the salt was upon the track and was attracting stock. I am of the opinion this was not contributory negligence in plaintiff. It was his...