Copeland v. Wabash Railroad Company

• Decision Date: 09 June 1903
• Citation: 75 S.W. 106,175 Mo. 650
• Parties: COPELAND v. WABASH RAILROAD COMPANY, Appellant
• Court: Missouri Supreme Court

75 S.W. 106

175 Mo. 650

COPELAND v. WABASH RAILROAD COMPANY, Appellant

Supreme Court of Missouri, Second Division

June 9, 1903

Appeal from Audrain Circuit Court. -- Hon. E. M. Hughes, Judge.

Affirmed.

Geo. S Grover and George Robertson for appellant.

(1) The demurrer to the evidence should have been sustained. Smith v. Railroad, 69 Mo. 32; Flynn v Railroad, 78 Mo. 202; Huhn v. Railroad, 92 Mo 448; Epperson v. Tel. Co., 155 Mo. 373; Bailey on Masters' Liability, p. 14; Cagney v. Railroad, 69 Mo. 423; Bohn v. Railroad, 106 Mo. 433; Blanton v. Dold, 109 Mo. 64; Steinhauser v. Spraul, 127 Mo. 562; Minnier v. Railroad, 66 S.W. 1072. (2) The court should have directed a verdict in favor of the defendant at the close of all of the evidence. Flori v. St. Louis, 69 Mo. 34; Ellet v. Railroad, 76 Mo. 518; Oglesby v. Railroad, 150 Mo. 136. (3) The court gave erroneous instructions at the plaintiff's request. Authorities cited, supra. (4) The court refused proper instructions asked by defendant. Authorities cited, supra. (5) There is an irreconcilable conflict in the instructions given at the plaintiff's request as compared with those given at the request of the defendant. This necessarily confused and misled the jury to the prejudice of defendant. Nor were the correct declarations of law given at defendant's request an antidote for the erroneous instructions given for the plaintiff. Flori v. St. Louis, supra; Dalauhi v. Railroad, 105 Mo. 645; Hickman v. Link, 116 Mo. 123; Quirk v. Elevator Co., 126 Mo. 295. (6) The plaintiff's counsel and the jury were guilty of misconduct in this case. For that reason alone the verdict below ought not to stand. Commonwealth v. Landis, 12 Phil. 576; Whitney v. Whitman, 5 Mass. 404; Carter v. State, 77 Tenn. 440; People v. McCoy, 12 P. 273; Hassan v. Railroad, 21 Weekly Notes of Cases 96, Dec. 13, 1887; Walker & Black v. State, 37 Tex. 389; Palmon v. State, 29 Ark. 253; 2 Thompson on Trials, sec. 2561; Farrer v. State, 2 Ohio St. 54; United States v. Ogden, 105 F. 371; 17 Am. and Eng. Ency. of Law, pp. 1214-1215.

P. H. Cullen, E. S. Gantt and W. M. Williams for respondent.

(1) It was defendant's duty to maintain a reasonably safe bridge across Rose creek, and it is liable to plaintiff for any injuries received by him in consequence of its negligent failure so to do. This issue was submitted to the jury under proper instructions, announcing legal principles that have frequently been approved by this court, and was found in plaintiff's favor. There can be no controversy concerning defendant's duty in that behalf, and it is liable for any injuries to plaintiff resulting from the non-performance thereof. Cobb v. Railroad, 149 Mo. 609; Williams v. Railroad, 119 Mo. 316; Stohrer v. Railroad, 105 Mo. 192; Stohrer v. Railroad, 91 Mo. 509; Lewis v. Railroad, 59 Mo. 495; Huhn v. Railroad, 92 Mo. 440; Bolen v. Railroad, 95 Mo. 263; Hirst v. Railroad, 163 Mo. 309. (2) There was ample evidence to justify the submission to the jury of the issue, whether, on account of the character of the stream, and the country drained by it, a pile bridge at the place where plaintiff was injured was a reasonably safe structure for defendant's railroad. (3) Defendant's testimony tended to show that there was an unprecedented rainfall in the vicinity of Rose creek at the time of the wreck. Plaintiff, upon the other hand, introduced evidence to the effect that, while the storm was unusual, it was not greater than others that had previously occurred in that neighborhood, and that the water in the creek had been quite as high at other times. The jury was instructed that if the accident was caused by an unprecedented and extraordinary flood, and did not result from defects in the bridge, plaintiff could not recover. Upon this issue the jury found for the plaintiff, and no complaint is made here as to the instructions upon that subject. (4) There is absolutely no foundation for the charge of misconduct on the part of plaintiff's counsel, Mr. Cullen, in reference to the jury. There is not a scintilla of evidence upon which to base it. He was asked by the reporters of the two daily papers, i. e., the Intelligencer and the Ledger, concerning the case, and in response to their inquiries informed them how the jury stood upon the former trial and told them something about the history of the case. He did not ask that any publication be made, and there is nothing whatever to indicate that his purpose was to influence the jury "in any way, shape or form." It does not appear that any one of the jurors ever saw the articles published in the Ledger and the Intelligencer. Mr. Cullen simply responded to the inquiries of the reporters. This is the sum and substance of his offending. "Only this and nothing more." (5) The reading of a newspaper article by the juror, Crum, which purported to give a statement as to how the jury stood upon the former trial, is no ground for setting aside the verdict. Sherwood v. Railroad, 50 N.W. 101; 2 Thompson on Trials, sec. 2576; Harriman v. Wilkins, 20 Me. 93; Kerr v. Lunsford, 2 L. R. A. 668; State v. Duestrow, 137 Mo. 44; State v. Reed, 137 Mo. 425; Fuller v. Fletcher, 44 F. 34; 12 Ency. Pl. and Pr., 662. (6) Defendant is in no condition to take advantage of this matter, in any event. It devolves upon it, before it can ask for a new trial on the ground of misconduct on the part of a juror, to show affirmatively that its attorneys had no notice of the alleged misconduct until after the verdict was rendered. This the defendant has entirely failed to do. Thompson & Merriam on Juries, sec. 456; State v. Robinson, 117 Mo. 666; Bank v. Cooper, 48 N.E. 236; State v. Howard, 118 Mo. 127; State v. Nocton, 121 Mo. 553; Easley v. Railroad, 113 Mo. 247; City v. Cook, 120 Mo. 11; Railroad v. Welsh, 40 N.E. 650.

OPINION

BURGESS, J.

This is an action for thirty-five thousand dollars damages alleged to have been sustained by plaintiff, a passenger conductor on defendant's railroad, by reason of the negligence of defendant company in failing 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 discharging his duties, being ditched at Rose branch in Clay county, on June 26, 1897. Plaintiff left Union Depot at Kansas City at 6:20 that evening in charge of his train, his objective point being St. Louis. The train had to cross Rose branch, a small stream about one mile west of Missouri City, and twenty 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 three and one-half miles long, skirted upon either side by broken land and abrupt bluffs, heavily timbered. It drains about thirteen hundred acres of land. For many years persons in the locality had 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 and on either side of it. Legs, 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 seven cars, viz., a mail car, three 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 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 and tender and ten or twelve loaded cars and three empty cars, or fifteen 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...