Duncan v. Missouri, K. & T. Ry. Co.

• Decision Date: 02 January 1911
• Citation: 152 Mo. App. 284,133 S.W. 369
• Court: Missouri Court of Appeals
• Parties: DUNCAN v. MISSOURI, K. & T. RY. CO.

133 S.W. 369

152 Mo. A. 284

DUNCAN v. MISSOURI, K. & T. RY. CO.

Kansas City Court of Appeals. Missouri.

January 2, 1911.

1. RAILROADS (§ 439)—DANGEROUS PREMISES —PETITION—NEGLIGENCE.

A petition in an action against a railroad company for the death of a horse, in jumping into a ditch by the side of a driveway in a railroad yard, which alleged that the company negligently failed to protect the driveway from caving by erecting a retaining wall, and negligently failed to protect persons or animals on the driveway from falling into the ditch by erecting a fence, charged two acts of negligence; the failure to protect the roadway by a retaining wall, and the failure to erect a guard fence.

2. RAILROADS (§ 274)—PERSONS ON PREMISES —INVITEES.

Teamsters engaged in hauling freight to and from cars at a railroad station who use a driveway forming a necessary part of the means provided for handling freight are invitees, and the railroad company owes them the duty of ordinary care to provide a driveway reasonably safe for its intended use.

3. RAILROADS (§ 407)—PERSONS ON PREMISES —INVITEES.

A railroad company maintaining a driveway in its yards at a station for use by teamsters in hauling freight to and from cars, must consider the situation and anticipate events that common knowledge will tell a person of ordinary prudence are likely to occur while the driveway is used in an ordinarily careful manner, and it must take cognizance of the fact that even gentle horses will at times become frightened at things to which they are accustomed, and that a railroad yard is full of such causes of fright, but it need not guard against the possibility of horses being frightened at the usual noises and movements of engines and cars, nor anticipate that teamsters will attempt to drive vicious or insufficiently broken horses on the driveway.

4. RAILROADS (§ 443)—PERSONS ON PREMISES —INVITEES.

In an action against a railroad company for the death of a horse by jumping from a driveway in a yard of a station into a ditch, evidence held to support a finding that the company negligently failed to provide a reasonably safe driveway.

5. RAILROADS (§ 425)—PERSONS ON PREMISES —INVITEES.

Where a railway company maintained a dangerous driveway for use by teamsters in hauling freight at a station, and a horse became frightened by a usual but sudden noise from a nearby locomotive, and jumped into a ditch by the side of the driveway, the cause of the fright of the horse was the remote cause of the accident, while the proximate cause was the maintenance of the dangerous driveway.

6. RAILROADS (§ 446)—INJURIES TO ANIMALS ON PREMISES—NEGLIGENCE—QUESTION FOR JURY.

In an action against a railroad company for the death of a horse, jumping from a driveway in a yard at a station into a ditch by the side of the driveway, the issues whether the injury was solely caused by the dangerous condition of the driveway, or whether it was in part due to a vicious propensity of the horse, held, under the evidence, for the jury.

Appeal from Circuit Court, Vernon County; B. G. Thurman, Judge.

Action by T. C. Duncan against the Missouri, Kansas & Texas Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Lee W. Hagerman and S. A. Wight, for appellant. Guy F. Nelson, for respondent.

JOHNSON, J.

This suit originated in a justice court, was appealed to the circuit court, and tried to a jury, resulting in a verdict and judgment for plaintiff, and is before us on the appeal of defendant. The action is for damages resulting to plaintiff from the killing of his horse and the injury to his wagon and harness, which he alleges were caused by the negligence of defendant.

The injury occurred May 31, 1909, on the wagon road along the team track in defendant's yards at Nevada. This road, provided and maintained by defendant for the use of teams and vehicles employed in loading and unloading freight from cars set on the team track, was paved with cinders and was only about 18 feet wide. The team track and yards were on the east side of the road, and on the west side was a ditch 4 feet deep, followed by ground on a lower level than the road. The east bank of the ditch was about perpendicular, and there is evidence to the effect that the ditch had cut into the bottom of the bank a little. Defendan...