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

• Decision Date: 08 November 1886
• Citation: 23 Mo.App. 209
• Parties: JOHN S. BROWN AND JANE E. BROWN, Respondents, v. THE HANNIBAL AND ST. JOSEPH RAILROAD COMPANY, Appellant.
• Court: Kansas Court of Appeals

23 Mo.App. 209

JOHN S. BROWN AND JANE E. BROWN, Respondents, v. THE HANNIBAL AND ST. JOSEPH RAILROAD COMPANY, Appellant.

Court of Appeals of Missouri, Kansas City.

November 8, 1886

APPEAL from Clinton Circuit Court, HON. GEO. W. DUNN, Judge.

Reversed and remanded.

Statement of case by the court.

This was an action by plaintiffs, who were husband and wife, for the recovery of damages sustained by the wife by reason of the defendant's failure to erect and maintain a good and sufficient crossing as required by law where the defendant's railroad crossed a certain described public road.

The plaintiffs' evidence tended to show that the crossing was unsafe and dangerous. One of the plaintiffs' witnesses Thomas Wright, testified as follows:

" Am, and for ten years have been road overseer of my district in Jackson township. The crossing is in my district am well acquainted with it; live one quarter of a mile from it. Road was there before railroad was built. Saw Mrs. Brown at the time she was injured. She was badly hurt. The planks on sides of the rails at crossing about nine feet long; depth of fill, about nine feet; length of approach to crossing about thirty feet; very abrupt on left side, and traveled wagon track is about eighteen inches from the edge of the embankment. Unless one is careful in going over the crossing he is liable to turn there. No macadam; just dirt. If team shies the least bit, it is liable to turn the wagon over. On north side the dirt approach is about even with the south end of the plank on the south side. On west side the roadway is about nine feet wide, the length of plank crossing. To be entirely safe from the embankment on south side, you must drive off the plank on the ties on the north side. I told Nolan, defendant's roadmaster, two years before the accident, if he would throw a couple of car loads of dirt in there the crossing would be a good one, and safe. I saw track of wagon when I went over. It began to slide immediately after leaving the rail. It passed over the planks at the proper place. Approach is on a slight curve and twenty-five or thirty feet long."

The female plaintiff testified as follows:

" Am John S. Brown's wife. I was driving a wagon and team of two horses across the railroad track. I saw I was falling, wagon, horses and all. The wagon began to slide, and then turn over, just as it left the railroad track. The wagon went over, and I was caught under it. Husband got me out. I remember but little after that. Was taken to Mellon's. Remained till Wednesday following. During nearly all that time I was confined to bed. Have not yet thoroughly recovered from the effects of the injury; was treated by physicians; health good before that; suffered great pain in back and shoulders and hips."

The husband testified among other things to the following: " The accident occurred on the west side of the crossing. The approach is six to ten feet wide. I had just crossed with my wagon without accident. I saw defect in crossing and avoided it. If she had seen it she could have come down all right. Some difficulty in driving across when a man is using care. If wagon should slip to one side it would be dangerous. Don't know of wife's team shying. The team was a quiet one."

There was no other testimony introduced by either party, as to the manner in which the accident happened.

The plaintiffs introduced other testimony touching the character of the crossing, tending to corroborate the testimony on that point hereinbefore set out. The defendant introduced testimony tending to show that the crossing was reasonably safe.

For the plaintiffs the court gave among others the following instruction:

" 3. If the jury find for plaintiffs they will assess such damages as they will believe to be a reasonable and fair compensation to them for the injuries of said Jane Brown, including her physical pain and mental anguish and suffering which has been the direct result of such injuries, not exceeding the sum of five thousand dollars."

The jury found in favor of plaintiffs in the sum of two thousand dollars.

STRONG & MOSMAN, THOS. E. TURNEY, for the appellant.

I. The court erred in overruling defendant's demurrer to the evidence. If the plaintiff, by the exercise of ordinary care, could have avoided the injury, then the plaintiff cannot recover. Buesching v. St. L. Gas Light Co., 73 Mo. 219; Barton v. Railroad, 52 Mo. 553. It it appears without any conflict of evidence, or by the cross-examination of plaintiffs' witnesses, that she did not exercise ordinary care, and that this want of ordinary care contributed proximately to the injury, it is the duty of the trial court to take the case from the jury. Buesching case, supra; Whiteacre v. Railroad, 35 Ohio St. 627; Hays v. Gallagher, 72 Pa.St. 140; Wharton Negl., sects. 425-427.

II. The third instruction given for plaintiff is erroneous. It directs the jury to assess the damages by both plaintiffs by the injuries of Jane Brown. Only the damages sustained by the plaintiff, Jane Brown, could be recovered in this suit, and a separate suit must be brought for the damages of the husband. Smith v. St. Joseph, 55 Mo. 456. Under the evidence the only elements of damages were the suffering, etc., of Jane Brown, but the instruction treats these as one, or rather as incident of the damages to be assessed.

III. The motion for a new trial should have been sustained for the reasons already given and because the jury disregarded the instructions given on the issue of ordinary care; and the verdict was against the evidence, and the damages were excessive.

THOMAS J. PORTER, for the respondents.

I. In passing upon a demurrer to the evidence, the court is required to make every inference in favor of the plaintiff which a jury might, with any degree of propriety, have inferred in his favor. When there is a complete failure of evidence, or admitting all the facts, if a verdict would violate common sense, and obvious reason, the court should interfere. But to authorize such interference, the evidence must not only be weak, but in fact there must be no evidence. 17 Mo.App. 195; Wilson v. Board of Education, 63 Mo. 137. Unless it clearly appears from plaintiffs' evidence,...