Gillespie v. St. Louis

• Decision Date: 25 February 1879
• Citation: 6 Mo.App. 554
• Parties: MARY L. GILLESPIE, Respondent, v. ST. LOUIS, KANSAS CITY, AND NORTHERN RAILWAY COMPANY, Appellant.
• Court: Missouri Court of Appeals

6 Mo.App. 554

MARY L. GILLESPIE, Respondent,

v.ST. LOUIS, KANSAS CITY, AND NORTHERN RAILWAY COMPANY, Appellant.

St. Louis Court of Appeals, Missouri.

Feb. 25, 1879.

1. In an action by a passenger against a carrier for negligence, where the allegations of the petition are such as to involve the issue, it is not necessary to plead specially that the injury occurred through the act of God. Evidential facts should not be pleaded.

2. In an action against a carrier by a passenger, where the plaintiff's proof shows the act of God as a possibly sufficient cause, the proof of the dent does not throw the burden on defendant.

3. The carrier is not bound to the highest degree of foresigh and circums tion as against an act of God, but only to such care as an ordinarily prudent person would use under all the circumstances of the case.

4. If the real cause of the injury is a sudden and extraordinary rain-stor which washed away the ties of the railroad, negligence of the caer which only remotely and indirectly contributed to the injury sued for will not make the carrier liable.

APPEAL from St. Louis Circuit Court.

Reversed and remanded.

WELLS H. BLODGETT and PROSSER RAY, for appellant: Under the petition, and the law of negligence as applicable to carriers of passengers, the demurrer to the evidence should have been sustained. The evidence offered by plaintiff developed vis major as the cause of the accident, and the burden of proof in such case was on plaintiff to show actual negligence.--Whart. on Neg. (1st ed.), sects. 129, 661; Le Barron v. East Boston Ferry Co., 11 Allen, 316; Withers v. North Kent R. Co., 3 Hurl. & N. 969. The second instruction given for the plaintiff is error. The defendant was not bound to prove in this case “that the rainstorm was the sole cause, and that defendant could not have prevented the injury by the greatest care and foresight, and that no negligence of the defendant mingled with the cause of the injury.”--Shearm. & Redf. on Neg. (3d ed.), sect. 270; Railroad Co. v. Reeves, 10 Wall. 176; Transportation Co. v. Dormer, 11 Wall. 129; Sawyer v. Hannibal & St. Joe R. Co., 37 Mo. 241; 2 Pars. on Con. (6th ed.) 161. The third instruction given for the plaintiff is manifest error. The flood was extraordinary, and defendant's employees could not foresee its occurrence or probable consequences.-- Nashville & Chattanooga R. Co. v. Davis, 6 Heisk. 261; Pittsburgh R. Co. v. Gilleland, 56 Pa. St. 445; 3 Hurl. & N. 969; Shearm. & Redf. on Neg. (3d ed.), sects. 445, 520, note 5.

HUDGENS & DAVIS, for respondent: Where the loss is caused by the act of God, if the negligence of the carrier mingles with it as an active and coöperative cause, he is still responsible.-- Wolf v. American Express Co., 43 Mo. 425; Amies v. Stevens, 1 Stra. 128; Williamson v. Bronson, 1 Murph. 417; Williams v. Grant, 1 Conn. 487; Clark v. Bornwell, 12 How. 272; 34 Barb. 256. “The degree of responsibility to which carriers of passengers are subjected, is not ordinary care merely, which will make them liable only for ordinary neglect, but extraordinary care, which renders them liable for slight neglect.”-- Morrissey v. Ferry Co., 43 Mo. 383; Sawyer v. Railroad Co., 37 Mo. 260; 14 How. 468.

HAYDEN, J., delivered the opinion of the court.

This is an action brought by the plaintiff as a passenger, to recover for an injury received by her when going east to St. Louis upon a train of the defendant's cars. The petition charged that by reason of the negligence of the defendant in the construction of its road, its failure to repair the roadway and to properly equip its engine and train, and want of care in the management of the engine and cars, the car on which plaintiff was riding was thrown off the track. The accident occurred at about twelve o'clock at night, near Salisbury in Chariton County, Missouri. In the evening, and also earlier in the night, there had been, as the evidence of the plaintiff showed, a rain-storm of extraordinary violence, and the main defence was founded upon this; the defendant contending that the effective cause of the injury was an act of God, the sudden and unusual rainfall which had caused a small sheet of water situated on the south side of the embankment of the railroad to overflow and wash away the dirt from under the ends of the ties, in consequence of which the bank gave way under the weight of the cars. The plaintiff contended that the defendant was negligent in respect to the construction and materials of the embankment; that there were not proper or sufficient outlets for the natural flow of water in the bottom through which the road passed at that point; that the defendant's agents had warning of the high water and could have stopped the train, and were negligent in running it over this embankment under the circumstances. As the case here turns upon the instructions relating to the defence of act of God, it is not necessary to go minutely into the somewhat voluminous testimony, or to speak of the other grounds upon which the plaintiff relied to support her case. The instructions, so far as necessary, are noticed below. The jury found for the plaintiff.

It is contended at the outset by the plaintiff that the defence of act of God was not available under the pleadings. But we are not to confound doctrines of law with the facts on which they rest. Substantive legal defences may rest on purely evidential facts; and here the extraordinary storm was, under the allegations of the petition as above given, merely a fact of evidence, such as ought not to be pleaded. Distinct specifications of negligence were made in the petition; and under the material issues raised by denial of them, there was of course no confession and avoidance. But even if there had been, the question whether right instructions were given as to the act of God would still be material. As the court below put the case to the jury, the principal issue was as to that defence; and it would be totally inadmissible for this court, when the defendant might have amended if the trial court had ruled against it, to deprive the defendant of the benefit of a defence because the trial court ruled in its favor.

If, then, the instructions were erroneous, the cause must be reversed; and that some of them given for the plaintiff were so, appears on examination. Thus, the second instruction for the plaintiff told the jury that “the burden of proving that the injury complained of was caused by an act of God, such as a sudden or extraordinary rain-storm, rests solely on the defendant; and in order to constitute it a defence, the defendant must prove that the rain-storm was the sole cause, and that the defendant could not have prevented the injury by the greatest care and foresight, and that no negligence of the defendant mingled with the cause of the injury.” The first objection to this instruction is that it is not applicable to the evidence. Here it came out as a part of plaintiff's case that the rain-storm was one of extraordinary violence, and seemingly adequate to produce the injury. The defendant might have rested upon the plaintiff's evidence, and have contended before the jury--subject of course to the opposite contention upon the plaintiff's part--that the sole efficient cause of the injury was the sudden and extraordinary rain-storm. One of the plaintiff's witnesses says: “It was an extraordinary storm, and, as compared with others, by far the hardest I ever experienced. * * * I never heard of a man in a sulky being drowned, * * * but it came mighty near it. * * * My horse did not try to travel. * * * The next morning I went down to the...