Camp v. Wabash Railroad Company

• Decision Date: 29 April 1902
• Citation: 68 S.W. 96,94 Mo.App. 272
• Parties: H. H. CAMP, Respondent, v. WABASH RAILROAD COMPANY, Appellant
• Court: Missouri Court of Appeals

68 S.W. 96

94 Mo.App. 272

H. H. CAMP, Respondent, v. WABASH RAILROAD COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

April 29, 1902

Appeal from Montgomery Circuit Court.--Hon. Elliott M. Hughes Judge.

REVERSED AND REMANDED.

Reversed and remanded.

George S. Grover for appellant.

(1) This is a common-law action, and, hence, should not have been tried, as it was, upon the theory that there had been a technical violation of the statute. Nall v Railroad, 97 Mo. 68. (2) The demurrer to the evidence should have been sustained. Yarnell v. Railroad, 113 Mo. 580; Moss v. Railroad, 86 Mo. 89; Henry v Railroad, 76 Mo. 293; Hanlon v. Railroad, 104 Mo. 387; Cohn v. City of Kansas, 108 Mo. 393; Ray v. Poplar Bluffs, 70 Mo.App. 261. (3) The court gave improper instructions at the plaintiff's request. Obert v. Dunn, 140 Mo. 485; Carder v. Primen, 60 Mo.App. 427; Corcoran v. Railroad, 105 Mo. 406; McGowan v. Railroad, 109 Mo. 534; Linn v. Bridge, 78 Mo.App. 118; Hohstadt v. Daggs, 50 Mo.App. 252. (4) The court gave erroneous instructions of its own motion. Hopper v. Hotel Co., 142 Mo. 378. (5) The verdict is so grossly excessive as to imply misconduct on the part of the jury. Chitty v. Railroad, 148 Mo. 64.

Rosenberger & Son and H. W. Johnson for respondent.

(1) Appellant first complains of the sufficiency of plaintiff's petition. The point is not well taken. The allegations of the petition are sufficient to support the action as tried. Nixon v. Railroad, 141 Mo. 425. (2) The law of Missouri is well settled that under a common-law count of negligence, statutory negligence may be shown. Hence, the court committed no error in admitting testimony to show appellant failed to construct a crossing as required by statute, and instruction No. 1 as prayed for by respondent correctly declared the law. Calvert v. Railroad, 34 Mo. 467; Iba v. Railroad, 45 Mo. 469; Minter v. Railroad, 82 Mo. 128; Boone v. Railroad, 20 Mo.App. 232. (3) The question of contributory negligence is one of mixed law and fact and should be determined by the jury, under the guide of proper instructions in the light of all attending circumstances. Fulks v. Railroad, 111 Mo. 335. (4) What an ordinarily prudent man would do under given circumstances must be left for the jury. It can not properly be declared, as a matter of law, that plaintiff failed to exercise care unless the facts exclude any other fair and reasonable inference. Jones v. Bond, 63 Mo. 501; Maus v. City of Springfield, 101 Mo. 613. (5) Plaintiff's instructions placed the case fairly before the jury and are undoubtedly the law, and well supported by the decisions of the appellate courts of the State. R. S. 1899, sec. 1103; Browning v. Railroad, 124 Mo. 55; Tetherow v. Railroad, 98 Mo. 74; Nixon v. Railroad, 141 Mo. 425; Kimes v. Railroad, 85 Mo. 611; Moberly v. Railroad, 17 Mo.App. 578. (6) The estimation of damages is the province of the jury; and where their verdict is supported by substantial evidence, and it has met the approval of the trial judge, the appellate court will not interfere on the ground that it is excessive. George v. Railroad, 145 Mo. 38; Dammann v. St. Louis, 150 Mo. 186; Heart Pence v. Rodgers, 143 Mo. 623; Hollandback v. Railroad, 141 Mo. 97; Cobb v. Railroad, 149 Mo. 609.

BARCLAY, J. Bland, P. J., and Goode, J., concur.

OPINION

BARCLAY, J.

--This is an action to recover damages for personal injuries sustained by plaintiff, while passing along a public highway on defendant's right of way adjacent to a crossing of the highway over defendant's railway track in Montgomery county, Missouri, near the town of High Hill. The complaint of plaintiff is that the public road there was in a dangerous condition, because of defendant's negligence in the work of raising the grade of the road on the right of way to conform to defendant's elevation of the grade of its track at that place to a level about a foot higher than the former grade.

At the time of the accident, plaintiff was driving a wagon along the road on his way homeward from Jonesburg. As he came down the grade from the railway crossing, he was thrown out of his wagon and received serious injuries. He ascribes the mishap to the defective condition of the roadway on the defendant's land constituting the approach to the crossing.

The defendant denies the aforesaid charge of negligence and asserts that plaintiff's want of ordinary care directly contributed to his injury.

The case was tried in the circuit court with the aid of a jury, resulting in a verdict and judgment in favor of plaintiff for seventeen hundred dollars. Defendant has appealed in the usual way.

The evidence of plaintiff tended to show that that part of the public road which lay upon defendant's right of way and constituted the approach to the said crossing over defendant's track, had in it a deep rut (which several of the witnesses called a "chuck hole") into which plaintiff's wagon ran as he drove down the incline from the tracks, and that owing to said defective condition of the roadway plaintiff's wagon upset and he received the injuries complained of.

The accident occurred between four and five o'clock p. m., October 7, 1899. Plaintiff's team of mules was moving down the incline at a brisk trot when the wagon ran into the rut and threw him out. Defendant claims that plaintiff's management of the team was negligent and that the accident might have been avoided by ordinary care on his part. With this defense is mingled a distinct intimation that plaintiff's conduct was somewhat affected if not inspired by preliminary libations which he is charged to have enjoyed on his visit to Jonesburg that afternoon.

The instructions given by the court at the instance of plaintiff are as follows:

"1. The court instructs the jury that it is the duty of every railroad company, or corporation, in this State, to construct a good and sufficient crossing, when its railroad is crossed by a public road, open and in use by the public, constructed of the material and in the manner following: on each side of each rail shall be laid and secured, spiked to the cross-ties, a plank of not less than ten inches in width, two inches in thickness, nor less than sixteen feet in length on all public roads, to be of good sound timber, the space between the inside planks to be filled with macadam or gravel, even with the top of the planks, with good and sufficient approaches thereto of equal width therewith and of easy grade, the same to be covered with gravel or macadam to a depth of not less than six inches and to be substantially and properly bound up to the planks required to be laid on the outside of each rail, and if the jury find that the defendant has failed or neglected or refused to construct such a crossing and approach, and by reason thereof while in the exercise of ordinary care the plaintiff was injured, then the jury will find for the plaintiff and assess his damages at such amount as they may believe from the evidence he has sustained.

"2. If the jury find from the evidence in the cause that the defendant in raising its railroad track at the crossing in question, left the south approach to said crossing in such defective, dangerous and hazardous condition as to render travel with wagons and horses thereover unsafe and hazardous, and that in consequence thereof the plaintiff, while passing over the south approach of said crossing in his wagon, was violently thrown therefrom to the ground and his ear greatly lacerated and almost severed and otherwise injured, then the jury will find for the plaintiff, and assess his damages at such sum as they may think he has sustained, not exceeding $ 2,500.

"3. The court instructs the jury that when a railroad crosses a highway or public road, already existing, it is the duty of the railroad company to make a good, convenient and safe crossing, so far as it can do so by ordinary care and diligence, so as to enable the traveling public to pass over the same without injury resulting from the negligence of defendant; and if the jury find from the evidence that the defendant failed and neglected to so construct the crossing and south approach in question, and by reason thereof the plaintiff in passing over said crossing and south approach was thrown from his wagon and injured, then the verdict should be for the plaintiff and the jury will so find.

"4. The jury are instructed that it was the duty of the defendant in raising its track at the crossing in question to level the said crossing and approaches thereto in such condition as to render travel thereon by the public easy, convenient and safe, so far as ordinary care and diligence could make it so; and if the jury find that the defendant failed and neglected to so leave said crossing and south approach thereto, and in consequence thereof and by reason thereof the plaintiff, while attempting to pass over said crossing and approach with his wagon and team, was thrown from his said wagon to the ground and was injured thereby, then the verdict should be for plaintiff and the jury will so find, and assess his damages at such sum as they may find he has sustained, not exceeding $ 2,500.

"5. The court instructs the jury that a traveler on a public road, when the same passes over a railroad track, is not required to look particularly to see that it is free from defects, but is only required to exercise ordinary care in crossing defendant's railroad track at the crossing in question and if plaintiff exercised ordinary care in crossing defendant's railroad track at the crossing in question, and in consequence of such defects in the construction of such crossing and south approach, he was thrown from his wagon and injured, then he is entitled to recover."

The instructions on behalf of de...