Franklin County v. Missouri Pac. Ry. Co.

• Decision Date: 28 March 1919
• Docket Number: No. 19920.,19920.
• Citation: 210 S.W. 874
• Parties: FRANKLIN COUNTY v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

210 S.W. 874

FRANKLIN COUNTY v. MISSOURI PAC. RY. CO.

No. 19920.

Supreme Court of Missouri, Division No. 1.

March 28, 1919.

Appeal from Circuit Court, Franklin County; R. A. Breuer, Judge.

Suit by the County of Franklin against the Missouri Pacific Railway Company for purpose of condemning right of way and opening public road over right of way of defendant. From judgment awarding defendant less than claimed by it, defendant appeals. Affirmed.

The plaintiff instituted this suit in the county court of Franklin county against the defendant for the purpose of condemning a right of way and opening a public road over the right of way of the defendant company. The county court awarded the defendant $100 damages, and in due time the defendant appealed the cause to the circuit court, where the trial resulted in a judgment for the defendant for the sum of $57.82, and the defendant appealed the cause to the St. Louis Court of Appeals, which, upon motion, transferred the cause to this court (183 S. W. 1099), because Franklin county was a party to the suit, and because the title to real estate was involved.

The cause is submitted to this court upon the following agreed statement of facts, in lieu of the bill of exceptions:

It is hereby stipulated between attorneys for appellant and respondent that the following is a correct statement of facts and synopsis of the evidence in this case, and may be considered by the appellate court in lieu of the bill of exceptions.

This was an appeal from the county court of Franklin county, Mo., in a condemnation proceeding instituted by the county whereby a public road was opened across the Missouri Pacific right of way near Little Berger Creek Bridge in Franklin county. Appellant was allowed $100 damages. It claimed more, and the appeal to the circuit court was from an order of the county court assessing said damages. The sufficiency of the proceedings in the county court was not questioned.

Appellant constructed the crossing and likewise erected a crossing bell.

At the trial of this case in the circuit court the damages claimed by appellant were: (1) For the amount expended in constructing the crossing proper, which, by stipulation, was fixed at $57.82. (2) The amount expended in constructing the crossing bell, which, by stipulation, was fixed at $240.20. (3) For such amount as appellant would in the future be required to expend in maintaining the crossing proper. (4) And for such amount as appellant would in the future be required to expend in maintaining the crossing bell.

Appellant made no claim for damages on account of the land taken and covered by said public road.

The county court did not order the construction of the crossing bell and denied any liability for the expense thereof. It likewise denied liability for future expenditures necessary for maintaining the crossing and crossing bell.

The board of railroad and warehouse commissioners did not order an electric bell to be installed, but appellant placed it there of its own volition and on its own motion.

These were the issues presented in this case.

The evidence tended to show that there had previously been a public road under the Missouri Pacific track near the location of the present crossing. A bridge was recently built by the county over Little Berger creek, and to facilitate the approach to this bridge the county surveyor recommended a change in the location of the public road, with the result that the crossing in question was opened across appellant's right of way.

The crossing in question is a grade crossing, and is at a point where the railroad track is curved and where the bluffs on one side of the track to a certain extent obstruct the view. Appellant introduced evidence tending to show that this was a dangerous crossing and that the construction of an alarm bell was a reasonably necessary precaution. Respondent introduced evidence to the contrary.

Expert testimony as to the probable cost of maintaining the crossing and crossing bell was likewise introduced.

The law in this case is the only point at issue and is fully covered by the instructions. If the appellate court holds that any or all of appellant's refused instructions correctly state the law which they purport to cover, then this case should be remanded. If appellant's instructions were, as a matter of law, properly refused notwithstanding the facts, then this case should be affirmed.

The court, sitting as a jury, found appellant entitled to damages for the construction of the crossing (excluding alarm bell) and assessed its damages at the sum of $57.82.

All objections to any and all irregularities of the record in the county court and the record on which this appeal rests are hereby waived, and it is agreed that the only issue before this court relates to the instructions hereinafter set forth.

[Signatures omitted.]

The following instructions requested by plaintiff were refused by the court, to which action of the court exceptions were duly served:

(A) The court assesses defendant's damages for the construction of the crossing and crossing bell mentioned in the evidence at $298.02, and the court shall allow defendant such additional damages as it may believe from the evidence will compensate defendant for its future expenditures in keeping said crossing and crossing bell in repair. " .

(B) The court declares the law that the court sitting as a jury shall assess defendant's damages as follows:

First. Such amount as defendant has expend ed in constructing the crossing in question, which the court declares is admitted by the parties to be the sum of $57.82.

Second. Such amount, if any, as the court sitting as a jury may believe defendant entitled to, under the other instructions herein, for expenditure by it in the construction of the crossing bell in question.

Third. Such amount as the court sitting as a jury may believe from the evidence defendant will be required to expend in maintaining and repairing the crossing in question aside from the alarm bell.

Fourth. Such amount as the court may believe from the evidence defendant will be required to expend in maintaining and repairing the alarm bell in question provided the court sitting as a jury shall find defendant entitled to damages on account of the construction of said alarm bell.

(C)...