Copeland v. Wabash R. Co.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtBurgess
Citation175 Mo. 650,75 S.W. 106
Decision Date31 March 1903
PartiesCOPELAND v. WABASH R. CO.<SMALL><SUP>*</SUP></SMALL>
75 S.W. 106
175 Mo. 650
COPELAND
v.
WABASH R. CO.*
Supreme Court of Missouri, Division No. 2.
March 31, 1903.

RAILROAD COMPANIES—DUTY TO TRAINMEN— SAFE BRIDGES—EVIDENCE—INSTRUCTIONS—ATTORNEYS ATTEMPTING TO PREJUDICE JURY—JURORS READING NEWSPAPER ARTICLE.

1. A railroad company owes the duty to its trainmen to construct and maintain reasonably safe bridges; and, having constructed a pile bridge where it was not reasonably safe, because of the high, swift water in case of rain, the floating logs, and the insufficiency of the earth under it to support piles, whereby it gave way under a train, injuring the conductor, it is liable for the injury.

2. Evidence, in an action for injury to a conductor by the giving away of a pile bridge under his train, held sufficient to support a finding that the earth under the bridge was insufficient to support the piles.

3. An instruction, in an action for injury to a railroad conductor by a bridge giving way, does not authorize a verdict for him on a finding that it was a pile bridge; it being that the jury should find for him if the accident was caused by reason of the defective condition of the bridge, and it was a pile bridge, and on account of the character of the stream and the country drained by it said bridge was not reasonably safe at that place.

4. An instruction, in an action for injury to a railroad conductor by the giving way of a bridge under his train, that defendant was not bound to furnish a bridge of a particular kind or style, but only a reasonably safe one for carrying trains, does not conflict with one that if, on account of the stream and topography of the country drained by it, a pile bridge was not reasonably safe, defendant had not performed its duty, and, if the injury resulted therefrom, it was liable.

5. Defendant's requested instruction, directing the jury, in passing on the extent of plaintiff's injuries and his physical condition, to consider that prior to the accident he had rheumatism, is properly amended to say that they may consider he had rheumatism prior to the accident, if they believe his subsequent ailments resulted in whole or in part therefrom.

6. That an attorney of plaintiff gave interviews to reporters does not tend to prove, so as to be ground for new trial, that he procured his statements as to a former trial to be published and caused them to be distributed, that they might be read by the jurors to prejudice them against defendant.

7. That jurors, pending the trial, see a paper which simply states how the jurors stood on a former trial as to awarding damages, and that plaintiff was suing for injuries received in a wreck where eight men were killed, and that a coffin was bought for him, but he recovered, is not ground for new trial.

Appeal from Circuit Court, Audrain County; E. M. Hughes, Judge.

Action by G. C. Copeland against the Wabash Railroad Company. Judgment for plaintiff. Defendant appeals. Affirmed.

Geo. S. Grover and Geo. Robertson, for appellant. P. H. Cullen, E. S. Gantt, and W. M. Williams, for respondent.

BURGESS, J.


This is an action for $35,000 damages alleged to have been sustained by plaintiff, a passenger conductor on defendant's railroad, by reason of the negligence of defendant company to provide and maintain a bridge which was reasonably safe. The specific allegations of the petition upon which the case was tried are as follows: (1) That said bridge was a pile bridge, and, on account of the character of the stream and the country drained by it, such a bridge at that place was not reasonably safe; (2) that the piling that supported said bridge had become rotten, unsound, or defective, and therefore not reasonably safe; (3) that there was not sufficient earth around some of said pilings, and for that reason the bridge was not reasonably safe. The answer was a general denial. The trial resulted in a verdict and judgment in favor of plaintiff for $15,000. Defendant appeals.

The accident occurred by reason of the train upon which plaintiff was dicharging his duties being ditched at Rose Branch, in Clay county, on June 26, 1897. Plaintiff left Union Depot at Kansas City at 5:30 that evening, in charge of his train; his objective point being St. Louis, Mo. The train had to cross Rose Branch, a small stream, about 1 mile west of Missouri City, and 20 miles east of Kansas City. As it was crossing Rose Branch, the bridge over that stream gave way, wrecking and ditching it, by reason of which plaintiff was greatly and permanently injured. Rose Branch is a stream about 3½ miles long, skirted upon either side by broken land and abrupt bluffs, heavily timbered. It drains about 1,300 acres of land. For many years persons in the locality have been cutting timber in the valley of this stream and on the hills on either side of it. The tops of the trees were scattered along the branch and in the valley on either side of it. Logs, full-grown trees, and other timber were cut and lying loose in and across the branch and in its valley. This state of affairs had existed for years, and was known to the defendant long prior to the time Mr. Copeland was injured. The precipitous bluffs on either side of the stream caused the water to rush into it with great rapidity. An ordinary rainfall would cause it to overflow, and when it overflowed it carried great quantities of timber and driftwood, and lodged it against the piling supporting the railroad bridge. On the evening of the accident, June 26, 1897, plaintiff left Kansas City at 6:20 p. m., as conductor in charge of a regular east-bound passenger train on defendant's railroad, bound for St. Louis. The train was composed of an engine, tender, and 7 cars, viz., a mail car, 3 passenger coaches, a chair car, baggage car, and a sleeping car. It was raining some, but not very hard, when the train left Kansas City. The regular west-bound passenger train on defendant's road arrived in Kansas City that evening just before the train in charge of plaintiff left there. This train passed over Rose Creek bridge at 5:43 p. m., and was on time

75 S.W. 107

at Missouri City, one mile east of there, at 5:38 p. m. This train safely crossed over Rose Creek bridge at the usual rate of speed, and at that time the water was not running in the branch underneath that structure. It was raining "just a very little bit" when this train crossed over Rose Creek bridge. This train had seven passenger cars, and was heavier than the train in charge of plaintiff. An extra freight train, east-bound from Kansas City to Missouri City, composed of an engine, tender, 10 or 12 loaded cars, and 3 empty cars, or 15 cars in all, passed over Rose Creek bridge in perfect safety at 6:20 that evening. It was not raining, and there was very little water in Rose Branch, when this train crossed it. Defendant's section foreman, with three men and a hand car, passed over Rose Creek bridge that evening at 5:45 p. m., going east to Missouri City. There was no water in Rose Branch then "to amount to anything." It was just beginning to rain. The foreman "noticed nothing unusual as to the condition of the bridge over Rose creek." There is, as the record shows, very little water in the branch at ordinary times. The driftwood in time of heavy rains floated down Rose Branch and lodged against the piling supporting the railroad bridge, but was removed as soon as practicable by defendant's section men. These men saw no driftwood in Rose Branch on the evening of the accident when they passed over the bridge.

The bridge in question was constructed in 1890. On the east and west banks of the stream stone abutments were constructed, upon which the bridge rested. The bridge was what is known as a "pile bridge," with about 60 feet of water way between the abutments. The stringers, upon which rested the rails of the track, were white pine, 7 by 16, and 32 feet long; that is, they were 16 feet at the top, 7 inches wide, and 32 feet long. The joints in the stringers were broken; that is, every other one was crossed, starting with 16 feet, then the next one would come 32 feet and fastened over with caps, and the next one the same way. Underneath the bridge, supporting it, were three rows of piling, 16 feet apart, and 16 feet from the edge of each abutment. Each row or bent contained 6 piles, or 18 in all. These piles were of Missouri white oak, perfectly new in 1890, purchased along the line of defendant's railway, and were inspected at Moberly by an experienced bridge builder before being used, and were all sound. As unloaded at the bridge, these piles were each 35 feet long, but were cut off to 30 feet each, so as to fit in the space under the rails. They varied from 16 to 18 inches in diameter, and were driven from 15 to 17 feet in the earth to the solid rock, where they could not be driven any further. In driving these piles a steam hammer weighing 2,500 pounds was used. After the piles were driven, cross-braces were put on each row or bent of 6 piles. After the accident it was discovered that the west side of the pilings in the bridge was entirely gone, and the piling in the middle bent was broken square off, and the piling in the east bent broken and splintered.

Defendant's tracks cross Rose Branch at right angles, at which point its bottom is solid rock or soapstone, and level, or nearly so, but its covering was of made earth, not evenly spread over it. The bed of dirt upon it was standing on its surface. It was higher and much more solid on the east side, and gradually inclined down toward the west abutment. The main channel of the stream ran next to the west abutment, and against the west row of piling. The wagon road passing under the bridge was not a public road, or one much traveled, but was a place where some neighbors passed through, going to and from their work. This road, or passageway, was between the east abutment and the east row of piling, and practically on the bank of the stream. From this wagon road the dirt...

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17 practice notes
  • Gordon v. Packing Co., No. 29600.
    • United States
    • United States State Supreme Court of Missouri
    • 24. Juni 1931
    ...v. Transit Co., 197 Mo. 97; Sabol v. Cooperage Co., 313 Mo. 540; Glasscock v. Dry Goods Co., 106 Mo. App. 657; Copeland v. Railroad Co., 175 Mo. 650; Deckerd v. Railroad, 111 Mo. App. 123; Bowen v. Railroad, 95 Mo. 268; Fugler v. Bothe, 117 Mo. 491; 26 Cyc. 1411; Cothron v. Packing Co., 98 ......
  • Markey v. Louisiana & M. R. R. Co.
    • United States
    • United States State Supreme Court of Missouri
    • 23. November 1904
    ...No. 3, on the subject of expert testimony, correctly declares the law. Copeland v. Wabash Railroad Co., 175 Mo. 662, loc. cit., 75 S. W. 106; W. U. Tel. Co. v. Light Co., 46 Mo. App. 142, loc. cit.; Hoyberg v. Henske, 153 Mo. 74, 55 S. W. 83; City of Kansas v. Butterfield, 89 Mo. 648, loc. ......
  • Van Houten v. K.C. Pub. Serv. Co., No. 19033.
    • United States
    • Court of Appeal of Missouri (US)
    • 7. November 1938
    ...Co., 147 Mo. App. 386, l.c. 403, 409-410, 126 S.W. 535, l.c. 540, 541-542, and many cases cited. See also: Copeland v. Wabash R.R. Co., 175 Mo. 650, l.c. 667, 75 S.W. 106, l.c. 110 (Instruction No. 16); Sexton v. Met. St. Ry. Co., 245 Mo. 254, l.c. 272-274, 149 S.W. 21, l.c. 25; Huss v. Hey......
  • Galentine v. Borglum, No. 19808.
    • United States
    • Court of Appeal of Missouri (US)
    • 7. April 1941
    ...Instruction No. 7. This instruction has been approved many times by the appellate and Supreme Courts. Copeland v. Wabash Railroad Co., 175 Mo. 650, 662, 25 S.W. 106; Markey v. Louisiana & Maryland R.R. Co., 185 Mo. 348, 84 S.W. 61. (a) Recent decisions have held that the instruction should ......
  • Request a trial to view additional results
18 cases
  • Gordon v. Packing Co., No. 29600.
    • United States
    • United States State Supreme Court of Missouri
    • 24. Juni 1931
    ...v. Transit Co., 197 Mo. 97; Sabol v. Cooperage Co., 313 Mo. 540; Glasscock v. Dry Goods Co., 106 Mo. App. 657; Copeland v. Railroad Co., 175 Mo. 650; Deckerd v. Railroad, 111 Mo. App. 123; Bowen v. Railroad, 95 Mo. 268; Fugler v. Bothe, 117 Mo. 491; 26 Cyc. 1411; Cothron v. Packing Co., 98 ......
  • Markey v. Louisiana & M. R. R. Co.
    • United States
    • United States State Supreme Court of Missouri
    • 23. November 1904
    ...No. 3, on the subject of expert testimony, correctly declares the law. Copeland v. Wabash Railroad Co., 175 Mo. 662, loc. cit., 75 S. W. 106; W. U. Tel. Co. v. Light Co., 46 Mo. App. 142, loc. cit.; Hoyberg v. Henske, 153 Mo. 74, 55 S. W. 83; City of Kansas v. Butterfield, 89 Mo. 648, loc. ......
  • Van Houten v. K.C. Pub. Serv. Co., No. 19033.
    • United States
    • Court of Appeal of Missouri (US)
    • 7. November 1938
    ...Co., 147 Mo. App. 386, l.c. 403, 409-410, 126 S.W. 535, l.c. 540, 541-542, and many cases cited. See also: Copeland v. Wabash R.R. Co., 175 Mo. 650, l.c. 667, 75 S.W. 106, l.c. 110 (Instruction No. 16); Sexton v. Met. St. Ry. Co., 245 Mo. 254, l.c. 272-274, 149 S.W. 21, l.c. 25; Huss v. Hey......
  • Galentine v. Borglum, No. 19808.
    • United States
    • Court of Appeal of Missouri (US)
    • 7. April 1941
    ...Instruction No. 7. This instruction has been approved many times by the appellate and Supreme Courts. Copeland v. Wabash Railroad Co., 175 Mo. 650, 662, 25 S.W. 106; Markey v. Louisiana & Maryland R.R. Co., 185 Mo. 348, 84 S.W. 61. (a) Recent decisions have held that the instruction should ......
  • Request a trial to view additional results

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