Cobb v. St. Louis & H. Ry. Co.

• Citation: 50 S.W. 894,149 Mo. 609
• Court: United States State Supreme Court of Missouri
• Decision Date: 28 March 1899
• Parties: COBB v. ST. LOUIS & H. RY. CO.

50 S.W. 894

149 Mo. 609

COBB v. ST. LOUIS & H. RY. CO.

Supreme Court of Missouri, Division No. 2.

March 28, 1899.

RAILROADS — BRIDGES — WASHOUTS — INSPECTION — NEGLIGENCE — EVIDENCE — EXPERTS — INSTRUCTIONS — DAMAGES.

1. In an action against a railroad for injury received in a wreck resulting from the bent of a bridge being washed out, the testimony showed that the stream was turbulent and dangerous, subject to sudden floods, which frequently destroyed portions of the bridge, which was an unsafe one, for that locality, and, instead of being built on stone abutments let down to bedrock, or on sills bolted to the solid rock, was built on posts, and, when any of these washed out, bents were rested on ties or blocks placed on the surface. The company knew that a great rise had occurred in the stream the night before, but did not know of a heavy rain later in the night. Held, that it was negligent in running its train over the bridge the next morning without inspecting it.

2. Where plaintiff's testimony that he did not keep an account, but his expense for medical attention, etc., "as near as he could get at it," was a certain sum, was not objected to as too general, and he was not cross-examined thereon, it was sufficient to support an instruction covering such expense.

3. Charges opposed to the evidence, or covered by charges given, are properly refused.

4. An expert on bridge building, though not acquainted with the locus in quo, may give his opinion as to whether a bridge was properly built in that locality from hearing other witnesses, who are acquainted, testify as to the character of the bridge.

5. $11,400 is not an excessive recovery for a strong, healthy man of 27, an express messenger, who receives injuries making him a mental and physical wreck, with no chance of ultimate recovery, and with his usefulness in making a living ruined, the injuries consisting of a compound fracture of the skull, affecting the brain and the nerve of one eye, probably necessitating its removal.

Appeal from court of common pleas, Hannibal county; Reuben F. Roy, Judge.

Action by Robert W. Cobb against the St. Louis & Hannibal Railway Company. There was a judgment for plaintiff, and defendant appeals. Affirmed.

Hostetter & Jones, for appellant. F. L. Schofield and Geo. A. Mahan, for respondent.

SHERWOOD, J.

Action for $25,000 damages; recovery for $11,400. Plaintiff was acting as expressman of the Pacific Express Company, and the injury occurred on a car attached to defendant's train, which car fell through a bridge on defendant's road. Plaintiff received no wages from defendant company, but was employed as an expressman by the express company, as before stated, and by that company he was paid, and to it he was responsible, although it was his duty to take care of the baggage in the baggage car in which the express matter was also kept, and to act as baggage master in handling such baggage, without charge therefor by his employer, the express company. After making the usual prefatory allegations, the petition, in charging the injury-producing negligence, states: "That while plaintiff was on such car, in the exercise of due care, in charge of such express matter as aforesaid, and being conveyed by defendant over its said line, he was, at a point on a railroad bridge over Big Peno creek in Pike county, Missouri, by reason of the car in which he was riding falling through said bridge on account of the defects in and insufficiency of said bridge, wounded and injured in the head, face, and eyes; that the said bridge where he was injured was negligently and carelessly and defectively made and maintained, and was at said time in an unsafe and dangerous condition, which said condition was known to the defendant, or could have been so known by the exercise of ordinary care; and that his injuries as above set out were caused by the negligence and carelessness of defendant, its agents and servants, in constructing and maintaining such defective, insufficient, unsafe, and dangerous bridge, and in running its said train upon same when in said unsafe and dangerous condition, whereby said bridge gave way, and said car in which plaintiff was being conveyed, as the same passed over said bridge, was caused to fall through the same to the bottom of said creek, thereby injuring plaintiff as aforesaid." The answer pleads, in substance, a general denial, and then avers that plaintiff was defendant's servant, and under its control in handling the express matter and baggage, and plaintiff was a fellow servant of all defendant's employés whose duty it was to maintain the bridges along defendant's line of railroad in a safe and proper condition; that defendant's approaches and bridge over Big Peno creek were constructed in a safe and workmanlike manner, and were always kept in a safe, proper, and perfect condition down to the time of the accident, and that on the night of that occurrence, to wit, May 9, 1894, "a heavy, sudden, unprecedented, and unexpected fall of rain took place in the immediate vicinity of said bridge, causing Peno creek to become flooded and swollen at said point to an extraordinary, unusual, dangerous, unforeseen, and unexpected degree and extent, whereby one of the bents constituting a portion of the southeastern approach to said bridge was dislodged and washed out by the flood between said hour of midnight and 2 or 3 o'clock on the morning of May 10, 1894, leaving the rails and stringers underlying same intact and undisturbed; that its nearest station to said bridge is located at Frankford, Mo., and it is about two and one-half miles distant, and that no rain of any consequence fell at Frankford during said night; and that the train on which plaintiff was at the time of the accident was a southbound train, and left Hannibal on schedule time, and passed through Frankford about on time, and thereafter reached the said bridge about 7 o'clock on the morning of May 10, 1894, and passed onto said bridge and onto the rails covering the space where said bent in the approach to the bridge had been washed away, precipitating the car in which plaintiff was riding in said washed-out space. Defendant says that it was impossible for it or any of its agents, servants, or employés, either in charge of said train or those to whom was intrusted the duty of keeping and maintaining such bridge and its approach in a safe condition, to have foreseen the heavy and unusual rainfall and the flood incident to same which occurred the night previous to such accident, and that it was impossible for defendant, its servants and employés, to have provided full and sufficient safeguards against the effect of said rainfall and the violent flood caused thereby, and that it was impossible for defendant, its servants and employés, to have or acquire any knowledge of said heavy rainfall and flood prior to such accident, or to have prevented same by the exercise of the utmost prudence, diligence, and care on the part of defendant, its servants and employés. Defendant therefore says that said accident was an inevitable one, and was caused by the act of God, and the same, together with its results, were such occurrences which were beyond the power of human ingenuity and ability to either foresee or prevent, and defendant is not liable for said accident, or any consequences or results following same, nor for any damage which plaintiff may have sustained in consequence of same; and now, having fully answered, defendant asks to be discharged, with its costs." Reply, a general denial. On this state of the pleadings the parties went to trial.

The evidence, in substance, showed this state of facts: A bridge had been built across Big Peno creek in 1872. It had been swept out a number of times so far as the bents were concerned. There had been a very high rise in Peno in 1875, and prior to that as well as subsequent thereto. It was characterized by the witnesses as a "bad stream," a "very dangerous stream." The bridge in question had been rebuilt in December, 1891, after numerous washouts had occurred, and thus given frequent warnings of the necessity for a more substantial bridge, and at the time of the accident had stood some two years and four months without a washout, or any of the bents which supported the bridge being swept away. The superstructure was 249 feet in length from the stone abutment on one shore to the other shore, and consists of — First, a Howe truss, 86 feet long, standing upon stone piers; and, second, a wooden structure, standing upon a series of bents, reaching from the Howe truss to the south-shore abutment, a distance of 163 feet. The main channel of the stream flows under the Howe truss nearer the north shore, but at high water covers the entire bed beneath the bridge from shore to shore. The bents which support the south 163 feet of the bridge are put in at intervals of about 16 feet apart, being 10 in all, and rest upon mudsills sunk into the sand and gravel to an original depth of 2 or 3 feet. The bridge stands about 12 or 14 feet above the creek bottom at the south end of the bridge, the depth gradually increasing towards the center of the main channel. Notwithstanding the creek, when in a turbulent mood, had frequently swept out the bents, the stone piers, which were built upon the solid rock, which was some 6 to 10 feet below the gravelly surface of the creek bottom, although some of them stood in the main channel of the creek, and had been subjected to many previous storms and consequent floods, had never yet yielded to their force, but, with undiminished strength, had withstood the last storm, which resulted in the litigated injury. Several witnesses stated that stone piers built on the solid rock were the only safe foundation on which to build the bridge at the point indicated, though one of the witnesses admitted that he thought a bridge in the locality designated by the pleadings would be safe provided it were built upon...