Davidson v. Chicago & Alton Railway Co.

• Decision Date: 02 February 1903
• Citation: 71 S.W. 1069,98 Mo.App. 142
• Parties: ZACHARIAH DAVIDSON, Respondent, v. CHICAGO & ALTON RAILWAY COMPANY, Appellant
• Court: Kansas Court of Appeals

71 S.W. 1069

98 Mo.App. 142

ZACHARIAH DAVIDSON, Respondent, v. CHICAGO & ALTON RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

February 2, 1903

Appeal from Lafayette Circuit Court.--Hon. Samuel Davis, Judge.

AFFIRMED.

Judgment affirmed.

F Houston for appellant.

(1) The petition did not state a cause of action, and defendant's objection to the introduction of any evidence should have been sustained. (2) The court erred in giving plaintiff's first instruction. (3) The court erred in giving plaintiff's second instruction. (4) The court erred in giving plaintiff's third instruction. (5) The plaintiff was guilty of gross contributory negligence which barred recovery. Madison v. Railroad, 60 Mo.App. 599; Harlan v. Railroad, 64 Mo. 480; Yancey v Railroad, 93 Mo. 436; Hanlon v. Railroad, 104 Mo. 381. (6) Even if respondent was entitled to recover, the damages awarded are excessive.

N. M Houx and Wm. H. Chiles for respondent.

(1) A general allegation of the negligent operation of the train would have been sufficient, but the pleader went farther. Hilz v. Railroad, 101 Mo. 36; Hanlon v. Railroad, 104 Mo. 391; Hill v. Railroad, 49 Mo.App. 520, and cases cited; Hurley v. Railroad, 57 Mo.App. 675. (2) The point as to whether the employees operating the locomotive and the train were warned, or saw or could have seen the signals so given, in time to avoid the collision, was clearly set forth to the jury in the first instruction given on behalf of the respondent. Clem v. Railroad, 72 Mo.App. 433. (3) The question of contributory negligence was fairly submitted to the jury on the instructions of the appellant, and this court will not disturb that finding. (4) The damages allowed by the jury being for a round sum were evidently on the theory that the engine was virtually destroyed, and the verdict is sustained by the evidence. The question of amount of damages to be allowed is one for the jury under the supervision of the circuit court, and the appellate court will not interfere. Railroad v. Railroad, 138 Mo. 599.

OPINION

SMITH, P. J.

This case, briefly stated, is that the plaintiff was the owner of a threshing machine engine which, while on a certain farm crossing over defendant's railway track, was negligently struck and demolished by one of its passing trains. The plaintiff had judgment and defendant appealed.

The defendant objects that the petition does not state a cause of action, in that it does not allege that the engineer, in charge of the locomotive pulling the train which collided with the plaintiff's threshing machine engine, was warned in sufficient time or at a sufficient distance to stop the train and avoid the injury, or that he saw, or by the exercise of reasonable care could have seen, the threshing machine in time to stop the train and avoid the injury. This objection is not well taken for two reasons, the first of which is that the petition embraces in its allegations the very matters which the defendant, strangely enough, claims are omitted therefrom; and the second is that even if the allegations were omitted, as claimed by defendant, in respect to the allegation of negligence it would still be sufficient since it is therein clearly and distinctly alleged that the collision which occasioned the injury was caused by the negligence of the engineer and other employees of defendant while engaged in managing and conducting the locomotive and train of cars drawn thereby. The general allegation of negligence, under the decisions of the appellate courts of this State, is all that is required in a case of this kind. Hilz v. Railroad, 101 Mo. 36; Hanlon v. Railroad, 104 Mo. 381; Hill v. Railroad, 49 Mo.App. 520; Hurley v. Railroad, 57 Mo.App. 675.

Nor...