Culbertson v. St. Louis, I. M. & S. Ry. Co.

• Decision Date: 02 July 1915
• Docket Number: No. 13956.,13956.
• Citation: 178 S.W. 269
• Parties: CULBERTSON v. ST. LOUIS, I. M. & S. RY. CO.
• Court: Missouri Court of Appeals

178 S.W. 269

CULBERTSON v. ST. LOUIS, I. M. & S. RY. CO.

No. 13956.

St. Louis Court of Appeals, Missouri.

July 2, 1915.

Appeal from Circuit Court, Stoddard County; Harry S. Shaw, Special Judge. "Not to be officially published."

Action by Mary E. Culbertson against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for plaintiff, and defendant appeals. Reversed, and cause remanded.

R. T. Bailey, of Jefferson City, and N. A. Motley, of Bloomfield, for appellant. J. M. Cook and Geo. Munger, both of Dexter, for respondent.

NORTONI, J.

This is a suit for damages accrued to plaintiff through the alleged negligence of defendant. Plaintiff recovered, and defendant prosecutes the appeal.

Defendant owns and operates a railroad running east and west through the city of Dexter. Plaintiff was injured while crossing the railroad in the highway, that is, Catalpa street, in Dexter. Plaintiff, in company with two or three other ladies, was driving south on Catalpa street, when a speeder operated by defendant came suddenly into view and frightened the horse so as to cause it to run away and throw her out of the buggy with such force as to break her arm at the wrist. On approaching the track plaintiff's view was obstructed by means of a large coal bin on the north side of the right of way, two freight cars standing on the side track, and some weeds on the right of way to the west of the coal bin. These obstructions to the view at the crossing of the highway, together with the operation of the speeder without regard to them, are asserted as the grounds of recovery.

It appears, as before stated, that defendant's railroad runs east and west through Dexter, while Catalpa street, on tie crossing of which plaintiff was injured, runs north and south. The speeder which frightened plaintiff's horse came from the west, and its approach was not discernible to one approaching the crossing from whence plaintiff came because of the several obstructions mentioned. Catalpa street is at the western limits of the city and, as before said, runs north and south across the railroad tracks, while plaintiff came into that street from the east immediately adjacent to the north side of the railroad right of way. North Main street runs east and west along the north side of defendant's right of way, and intercepts Catalpa street 50 feet north of the center of the right of way. Plaintiff, with her companions, was driving westward from the central part of the city on North Main street, and at the point of the intersection of that street with Catalpa street— that is, about 50 feet north of the place of her injury—they turned immediately south in Catalpa street to cross the tracks. Defendant maintained two tracks at this point; that is to say, its main line and a side track. The side track was on the north, while its main line was about 8 feet farther south. The adjacent territory was practcally level, and both railroad tracks were situate on an embankment about 5 feet in height, so that it was necessary to ascend a slight incline from the north to the crossing and likewise descend on the opposite side. On the north side of the railroad tracks and a short distance west of Catalpa street defendant maintained a coal bin of considerable proportions, Immediately east of the coal bin on the side track so as to protrude over into the crossing of Catalpa street stood two box cars. There is evidence, too that west of the coal bin some weeds were permitted to remain standing. All of this, it is said, obstructed the view to the westward, from whence the speeder came, of one riding in a buggy on North Main street toward Catalpa street and approaching the crossing as plaintiff and her companions did.

The evidence tends to prove that plaintiff and her companions looked and listened for approaching trains before driving upon the crossing, but neither saw nor heard any indication of danger. The horse in use was a gentle, tractable one, and, though it crossed the tracks at the same place frequently, driven by plaintiff, had never talen fright there before. On entering upon the tracks from the north the horse passed over the first track—that is, the side track—and emerged from beyond the end of the box car, which, it is said, protruded slightly into the highway, just as the speeder on which two men were seated noiselessly approached from the westward. On passing the end of the box car situate on the side track the horse was seized with fright at tie sudden appearance and movement of the speeder coming from the westward a short distance away and lunged to the southward, became unmanageable, abruptly veered a about, and precipitated plaintiff from her position in the. buggy to the roadside so as to fracture her arm. No warning of the approach of the speeder was given, and the evidence tends to prove that because of its slight structure no observable noises were occasioned so as to suggest its approach before it suddenly came into view, as above stated, but a few feet away from the horse. Though no collision actually occurred, the speeder came to within 3 or 4 feet of the conveyance. The speeder is described in evidence as being a hand car, possessing three wheels only, and bearing a seat on which its occupants ride while propelling it by hand. It is said to be of light construction, and therefore runs upon the railroad without making any considerable noise. Although the hand car known as a speeder appears to be in general use, plaintiff and her companions say they had never seen nor heard of one before the time in question.

The petition proceeds on the theory that, as defendant had obstructed the view to the westward of persons approaching as plaintiff did, by driving west on North Main street and turning upon the crossing immediately on the north side of the railroad right of way, the law devolves the duty upon it to exercise care for the safety of such persons so crossing the tracks commensurate to the peculiar situation involved. In this view it is averred that defendant breached its duty with respect of exercising ordinary care for the safety of such persons by suddenly running the speeder up to the very crossing of the highway without either giving warning of its approach or making observations for the safety of plaintiff or others in the highway so as to avert either a collision or giving fright to a passing horse. The petition is an extended pleading. It contains much redundant matter, and the wealth of averment tends to obscure in a measure the real cause of action asserted. Its sufficiency is not to be considered as if challenged by a demurrer to the averments. Neither was a motion to make it more definite and certain interposed. By the command of the statute it is to be liberally construed in the interests of justice; that is, in aid of the cause of action revealed, if any. See Butts v. Long, 94 Mo. App. 687, 68 S. W. 754. Mere surplusage may be disregarded. In this view we regard it as sufficient after verdict. However, it would be well to amend before a retrial if plaintiff is so advised.

But it is argued plaintiff cannot recover, for the reason no breach of duty may be asserted by one injured in the highway on account of the usual and ordinary use of the...