Cooper v. Davis

• Decision Date: 09 October 1925
• Docket Number: No. 24964.,24964.
• Citation: 276 S.W. 54
• Parties: COOPER v. DAVIS, Director General, etc.
• Court: Missouri Supreme Court

276 S.W. 54

COOPER v. DAVIS, Director General, etc.

No. 24964.

Supreme Court of Missouri. Division No. 1.

October 9, 1925.

Appeal from Circuit Court, Jackson County; Willard P. Hall, Judge.

Action by Carlotta Cooper against James C. Davis, as Director General of Railroads and agent designated by the President under the Transportation Act of 1920 (U. S. Comp. St. Ann. Supp. 1923, § 100717frac14;cc). Judgment for defendant, and from an order sustaining plaintiff's motion for new trial defendant appeals. Affirmed.

Edw. J. White, of St. Louis, and Thos. Hackney and L. A. Welch, both of Kansas City, for appellant.

Atwood, Wickersham, Hill, Levis & Chilcott, of Kansas City, and T. 5. Hackler, of Lees Summit, for respondent.

LINDSAY, C.

In this case there was a directed verdict for defendant, and the appeal of defendant is from the order sustaining plaintiff's motion for a new trial.

The action is one for personal injuries sustained by the plaintiff through falling into a ditch, which was on defendant's right of way in the city of Lees Summit. The right of way and tracks of defendant extend, north and south through the town. Third street extends east and west, crosses defendant's tracks, and is a thoroughfare between the east and west portions of the town. The station building of defendant is located about one-half block north of the crossing of its tracks by Third street. There are two tracks running along the west side of the station building. From the station building south to the Third street crossing, defendant maintains a paved approach to said station building. 'Upon the north side of Third street is a concrete sidewalk, 4 feet in width, and the walk extends across the right of way. West of the two tracks mentioned, and within defendant's right of way, there was a ditch for drainage extending north and south. Immediately west of defendant's right of way, and north of Third street, was a small city park. The ditch served as a drainage for defendant's right of way and also for this park. From about the west line of the right of way, where that line intersects the sidewalk, defendant maintained a platform or walk of timbers or boards, extending thence eastward across the ditch, and to about the ends of the ties of the westermost of its two tracks. This board platform, or walk, joined immediately upon the sidewalk on its north side and was level with it, was about 3½ feet in width, and was 10 or 12 feet in length. The ditch was between 2 and 3 feet deep.

The testimony was that the board extension had been there many years, and that the public walked upon it; people would "corner across" it in going to or coming from defendant's station building. Plaintiff introduced evidence to show that a guard rail could be placed at small expense, and without interfering with the safe movement of trains. This evidence was not objected to.

At about 8:30 o'clock of the evening on October 1, 1918, the plaintiff, accompanied by her mother, was on her way to defendant's station building, and walking eastward upon the concrete sidewalk that has been mentioned. It was dark, and plaintiff came upon the board platform or extension, and stepped or fell into the ditch and received the injuries for which she sued. Plaintiff's testimony was that there was "some sort of a light in the station building." There was no guard rail at the ditch, and it was not lighted by defendant. The city maintained a street light on Third street near by, but upon the night in question it was not burning. It was agreed upon the trial that the construction of the railroad of defendant where it was was completed in September, 1865, and that from that time defendant and its predecessors had maintained regular service between St. Louis and Kansas City, through Lees Summit, and along the place mentioned. It was further shown by defendant that the town of Lees Summit was originally platted as the town of Strother; and defendant introduced in evidence a plat of the town of Strother, dated and filed for record on October 28, 1865, made by Wm. B. Howard, as owner of the land. The plat showed the course of the right of way of defendant, and that along this place it was 120 feet in width, and also showed Third street and other streets as intersecting and crossing said right of way. Defendant introduced an agreement made by said Howard on October 13, 1857, to convey land for right of way, should the railroad be located on his land. Plaintiff introduced the record of a deed dated March 12, 1866, conveying such right of way under said contract.

The plaintiff and her mother, prior to the day in question, had been residents of Garnett, Kan., but had arranged to take up their residence in Lees Summit, and had shipped, by freight, their household goods from their former home to Lees Summit. They arrived at Lees Summit in the late afternoon of that day, and inquired of defendant's agent whether their household goods had arrived, and were informed that they had not, but were told by the agent that if they would come back after supper he would send a tracer for them. Thence they walked westward along the sidewalk that has been mentioned on the north side of Third street to a hotel about a block away. After supper, they proceeded eastward along the sidewalk that has been described on Third street, intending to see defendant's agent, and on the way both of them stepped or fell into the ditch. Plaintiff's mother testified that they walked along "those boards and the walk together. * * * Those timbers along the sidewalk over the ditch." The plaintiff testified that it was dark as it could be; that she could feel the sidewalk under her feet, did not notice when she stepped off on some timbers; that the first thing she knew she was in a hole. She said they were not trying to cut diagonally across the railroad tracks; that they were trying to cross the same sidewalk they came on.

It is apparent from the record, and from the discussion of the respective counsel, that the trial court directed a verdict upon the theory that the crossing by Third street of the railroad, having been made after the completion of the railroad, the defendant was under no duty to guard the place, and that the sole duty, if any, in that respect was upon the city.

According to the statement in appellant's brief, the view of the trial court upon the motion for a new trial was that:

"The statute requiring railway companies to construct sidewalks to conform to the city's plans thrusts the burden upon the railroad company to construct barriers where the sidewalk crossed railroad ditches, and that the question of the necessity of a barrier in this case was one for the jury."

The claim of error upon the part of the trial court in granting a new trial is grounded upon the contention that the ditch was a drainage ditch, authorized and required by statute; that the railway had been constructed and was in operation before Third street was platted; that the company had constructed the crossing in the manner required by statute, and had built the sidewalk of the width and materials required by the city; that the statute, in requiring railroad companies to construct the crossing and to build a sidewalk according to the requirements of a city ordinance, does not require more than that, and does not require the company to construct and maintain other structures that might be necessary to the convenience and safety of the, crossing, but that such structures must be erected and maintained by...