Ellet v. St. Louis, Kansas City & Northern Ry. Co.

• Decision Date: 31 October 1882
• Citation: 76 Mo. 518
• Parties: ELLET v. THE ST. LOUIS, KANSAS CITY & NORTHERN RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

76 Mo. 518

ELLET

v.THE ST. LOUIS, KANSAS CITY & NORTHERN RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1882.

Appeal from Buchanan Circuit Court.--HON. JOS. P. GRUBB, Judge.

REVERSED.

Wells H. Blodgett for appellant.

1. The court erred in striking out the new matter contained in the answer. The practice act, (1 R. S., p. 603,) requires the answer to contain, 1st, A general or special denial of the material allegations of the petition, and 2nd, A statement of any new matter. To apprise the plaintiff of its reliance upon an extraordinary storm, it was necessary for defendant to state that fact in an appropriate manner in its answer. Northrop v. Mo. Val. Co., 47 Mo. 435. In this State any new or affirmative matter relied upon, such as the contributory negligence of a plaintiff, should be affirmatively pleaded and proven. Thompson v. N. Mo. R'y Co., 51 Mo. 190; Harrison v. Mo. Pac. R'y Co., 74 Mo. 364; Buesching v. St. Louis Gas Co., 73 Mo. 219; Milwaukee, etc., R. R. Co. v. Hunter, 11 Wis. 167; Iron Mountain Bank v. Murdock, 62 Mo. 73.

2. There was no duty on the defendant to provide drains sufficient for an extraordinary storm. “It might with equal propriety be required that they should have provided against a flood, such as the deluge in the days of Noah.” Nashville & C. R. R. Co. v. David, 6 Heisk. 261; Shear. & Red. on Neg., (3 Ed.) § 445; Pittsburg & C. R. R. Co. v. Gilleland, 56 Pa. St. 445; Livezey v. Phil., 64 Pa. St. 106; s. c., 3 Am. Rep. 578.

3. The eighth instruction was erroneous. It requires the defendant to exercise the same care to prevent injuries from acts of God and vis major as it is required to exercise as to agencies and forces subject to its control. Such is not the law. R. R. Co. v. David, 6 Heisk. 261; s. c., 19 Am. Rep. 594; R. R. Co. v. Reeves, 10 Wall. 176; Trans. Co. v. Downer, 11 Wall. 129; R. R. Co. v. Gilleland, 56 Pa. St. 445; Withers v. R. R. Co., 3 H. & N. 969; Nugent v. Smith, L. T. (N. S.) 827; Ward v. A. & P. Tel. Co., 71 N. Y. 81; s. c., 27 Am. Rep. 10; Flori v. St. Louis, 69 Mo. 341; Sawyer v. R. R. Co., 37 Mo. 241.

Strong & Mosman for respondent.

1. Everything in the special plea was provable under the general denial. Bliss Code Pleading, § 329; Greenway v. James, 34 Mo. 326; Corby v. Weddle, 57 Mo. 452.

2. The defendant being a carrier of passengers is bound to exercise the utmost care and diligence, and is responsible for the slightest neglect. Strong on Bailments, § 601; Lemon v. Chanslor, 68 Mo. 356; Sales v. Western Stage Co., 4 Clarke (Iowa) 547; Hegeman v. Western R. R. Co., 13 N. Y. 9; Frink v. Potter, 17 Ill. 406.

3. The carrier is liable for a loss arising from inevitable necessity existing at the time of the loss, if his previous misconduct or negligence occasioned the exposure to such necessity. Armentrout v. R'y Co., 1 Mo. App. 158; Vail v. Pacific Co., 63 Mo. 230; Pruitt v. R. R. Co., 62 Mo. 542; Clark v. R'y Co., 39 Mo. 184; Hardy v. Carolina Cent. R. R. Co., 74 N. C. 734.

HOUGH, C. J.

This is an action brought by the widow of Richard S. Ellet, deceased, to recover from the defendant the statutory penalty of $5,000, on account of the death of her husband, which was occasioned by the overturning of a train of cars on the defendant's railway, near the town of Salisbury, in Chariton county, on the night of September 5th, 1876, on which train the deceased was a passenger.

The material portion of the petition is as follows:

“That, while said Richard Ellet was being carried by defendant as such passenger, in said coach, on said 5th day of September, 1876, at a point on said railroad at or near the town of Salisbury, in Chariton county, Missouri, the defendant, not regarding its duty to said Richard Ellet as such passenger, and its duty to plaintiff, did, by its servants and agents, so carelessly, negligently and unskillfully conduct and run its said coach and train of cars, of which said coach was a part, over and along its said railroad, that on that day, at the point aforesaid, on said railroad, by the carelessness, negligence and default of said defendant, its servants and agents, and for want of due care, caution and attention to its duty to said Richard Ellet as such passenger, the said coach, in which he was then carried by defendant's said railroad, overturned, and by reason of a defect and insufficiency in defendant's said railroad at the point aforesaid, as well as by the negligence, carelessness and lack of caution of defendant's servants in charge of said train, was violently thrown down the side of an earth embankment (which was then and there a part of said railroad track), and into deep water, which was there at the time accumulated against said road and upon the lands adjacent to said earth embankment and upon said road, by reason of the negligence and carelessness of defendant in this, to-wit: That the defendant did not, at the point aforesaid, construct, and had not maintained there, at and before the time aforesaid, suitable and sufficient ditches or drains along each side of said road-bed, connected with other drains or water-courses, so as to afford sufficient outlet to drain and carry off the water obstructed and then accumulated there by the construction of said road-bed of defendant and by said embankment, and said Ellet was violently carried and thrown with and in said coach down the declivity of said earth embankment, and into said deep water, and thereby greatly bruised, wounded and disabled, and by and in said water strangled.”

The petition further charged that the sleeping car in which the deceased was being carried, was defectively constructed, but as the court instructed the jury that there was no evidence that said car was defectively or improperly constructed, it is unnecessary to notice this allegation further.

1. PLEADING: special plea: general denial.

The defendant denied all the allegations of the petition, and for a further defense, alleged: That, long prior to September 5th, 1876, defendant's railroadbed, tracks and embankments, at the place of the accident, had been built of the best materials for the construction of railroads, in a careful and prudent manner, with ample and sufficient drains and water-ways, and that the same was maintained and kept up in such condition by defendant on said day. Defendant avers and charges that said railroad and embankment, at the place where said train was overturned, had withstood for a long series of years the hardest storms that had prevailed in that locality, and that said railroad embankment, at said place, could only have been weakened by some convulsion of nature, or other extraordinary cause. Defendant charges that, on the night of the accident, and but a short time before the arrival of said train, there had been a sudden and extraordinary rain storm at and near the place where the cars were overturned, of wholly unprecedented violence, and that, in consequence thereof, the waters had suddenly risen to an extraordinary height, and had suddenly and secretly undermined and weakened a portion of the road-bed and embankment at said place. Defendant avers that, on or about midnight of said September 5th, 1876, when said train attempted to pass over this portion of the road-bed, there was no water on the track, and the same seemed to be safe and sound; but that, in consequence of the embankment having been, before the arrival of said train, secretly and suddenly undermined and weakened, as aforesaid, a portion of the dirt under some of the ties on the north side of the road-bed gave way, and a part of said train was overturned, and said Ellet was then and there killed. Defendant avers that, at the time and place when and where the cars were overturned, the speed of the train was only five or six miles an hour, when the regular card time of said train along said portion of the road was twenty-five miles an hour. Defendant also avers that the servants in charge of the train itself were competent and skillful, and were at the time, and all along had been, in the discharge of their respective duties; that the train itself was properly equipped with the best appliances and materials, and that all the servants whose duty it was to look after said track and train were at the time, and had at all times been, engaged in the proper performance of their duties. Defendant avers that none of its servants knew, or could reasonably have known, that the embankment had been undermined or weakened or endangered prior to the accident; that the overturning of said cars, and the death of said Ellet, was in nothing caused by any omission of duty or negligence of defendant's servants, but that said cars were overturned, and said Ellet killed, in sole and direct consequence of the sudden and unknown weakening of said embankment by the extraordinary rain and storm aforesaid.

This defense was, on motion of the plaintiff, stricken out, but the defendant was permitted to cross-examine the plaintiff's witnesses as to all the matters therein set up, and to introduce evidence on its own behalf to establish said defense. We see no error in this action of the court. The matters set up in the special defense could all be proven under the general denial.

The court instructed the jury that there was no evidence tending to show that the defendant's road-bed or track was defectively or improperly constructed, at the time when and place where the injury occurred, or that the engine and cars composing the train were defective or insufficient in any particulars which contributed to the death of said Ellet, so that it will be unnecessary to refer with particularity to the testimony bearing upon these points.

It appears from the record that about one mile west of Salisbury, where the cars were overturned, the defendant's road passes through a high rolling prairie; that there was a pond on the south side of the road, made by the construction of an embankment across a ravine or “prairie hollow,” which...