Burger v. St. Louis, Keokuk & Northwestern Railway Company

• Decision Date: 09 July 1894
• Citation: 27 S.W. 393,123 Mo. 679
• Parties: Burger v. St. Louis, Keokuk & Northwestern Railway Company, Appellant
• Court: Missouri Supreme Court

27 S.W. 393

123 Mo. 679

Burger v. St. Louis, Keokuk & Northwestern Railway Company, Appellant

Supreme Court of Missouri, First Division

July 9, 1894

Certified fro St. Louis Court of Appeals.

Reversed and remanded.

Dunn & Murphy and Palmer Trimble for appellant.

(1) There is no duty upon a railroad company to look after or police any of its right of way except the main track or that part they assume actual corporate control over. Reidemond v. Railroad, 13 Am. and Eng. R. R. Cases, 515; Railroad v. Kirksey, 3 S.W. 190: Ward v Wilmington, 13 S.E. 926; Edson v. Railroad, 40 Iowa 47; Cham v. Railroad, 75 Ill. 577; Railroad v. McClanahan, 74 Ill. 436; Gilliland v Railroad, 19 Mo.App. 413. (2) Though the facts in this case are stronger in appellant's favor, the rule applicable is announced in Gilliland v. Railroad, 19 Mo.App. 413. (3) The majority opinion by the St. Louis court of appeals in this case is not sound and should be reversed. The dissenting opinion of Judge Rombauer is the law. Burger v. Railroad, 52 Mo.App. 128. (4) The majority opinion of the court of appeals is based upon the theory that salt placed upon the right of way by strangers, amounts to a nuisance for which the company is liable. But it has been held in California that a railroad is not liable for damages from a nuisance on its right of way caused by its servants, and that, too, where the nuisance was one per se. Hopkins v. Railroad, 55 Cal. 190.

Spencer & Mosman also for appellant.

(1) The case at bar does not fall within and should not be governed by the rule in Crafton v. Railroad, 55 Mo. 580, and kindred cases. In each of those cases the defendant was directly and immediately responsible for the presence of the salt, hay, or other article upon the track. The salt, or the hay, was upon the track in each of these cases by the defendant's act. Here the defendant had no connection with the presence of the salt under the warehouse. It was placed there by a merchant who had rented the warehouse and was using it as a place of storage, and the defendant, as the landlord, could not be held liable for the act of the sublessee. Shearman and Redf. on Neg., sec. 708; Cheatham v. Hampson, 4 T. R. 318; Payne v. Pogers, 2 H. Bl. 350; Tewskbury v. Bucklin, 7 Mo.App. 518; Peterson v. Smart, 70 Mo. 34; Grogan v. Foundry Co., 87 Mo. 327; Deutsch v. Abeles, 15 Mo.App. 389; Ploen v. Staff, 9 Mo.App. 309. The salt had not been placed on the track by a stranger in Crafton case, or in any of the cases cited, and hence those cases should not be decisive of this. (2) There is no evidence to show that the salt attracted the attention of the cattle in question in this case. Verdicts must have some better foundation than mere conjecture. Fetterling v. Railroad, 79 Mo. 504; Smith v. Railroad, 37 Mo. 295; Callahan v. Warne, 40 Mo. 136; Wood v. Railroad, 51 Wis. 196. "A verdict founded on mere possibilities or probabilities, however reasonable, will not be permitted to stand." Moore v. Railroad, 28 Mo.App. 622.

J. W. Powell for respondent.

Macfarlane, J. Barclay, J., concurs in the result.

OPINION

Macfarlane, J.

This action was to recover the value of cattle killed by a train of defendant at one of its stations in Lincoln county. The negligence upon which recovery was sought is in substance thus stated: Defendant by its servants and agents, did negligently and carelessly allow salt to be left uninclosed under and around its depot and warehouse building at the station of Hurricane, and that by reason of such negligence the said cattle were attracted upon the railroad track of said defendant and were killed by a train; and said depot or warehouse building is wholly upon the right of way of defendant.

The evidence showed that the railroad track at said station ran north and south and on the west side thereof, and upon the right of way the Empire Milling Company owned a warehouse forty feet long, north and south, and twenty feet wide. The house stood on posts some feet above the ground. William Bromaster owned a general store at the station, and stored salt in barrels under the warehouse. Bromaster also acted as agent of defendant at that station. One barrel, located under the northwest corner of the building, was open and accessible to stock. There was grass upon the east side of the track. Plaintiff's cattle frequented the station grounds, and the evidence tended to prove that they sometimes licked salt from this barrel. It was not definitely shown at what distance the warehouse was from the track, but we may infer that it stood near enough to the side track to permit the loading into cars therefrom. The open salt barrel must therefore, have been situate from the main track the width of the warehouse, the space between it and the side track, and...