Goodrich v. Kansas City, Clinton And Springfield Railway Co.

• Citation: 53 S.W. 917,152 Mo. 222
• Parties: Goodrich, Appellant, v. Kansas City, Clinton and Springfield Railway Company
• Decision Date: 14 November 1899
• Court: Missouri Supreme Court

53 S.W. 917

152 Mo. 222

Goodrich, Appellant, v. Kansas City, Clinton and Springfield Railway Company

Supreme Court of Missouri, First Division

November 14, 1899

Appeal from Henry Circuit Court. -- Hon. James H. Lay, Judge.

Affirmed.

M. T January for appellant.

(1) A railroad company owes the same duty to its employees to furnish an unobstructed and safe track as to furnish safe appliances. An injury resulting to an employee from a failure of duty in this regard on the part of the company gives a cause of action. Henry v. Railroad, 109 Mo. 487; O'Mellia v. Railroad, 115 Mo. 205; Dickson v. Railroad, 124 Mo. 140. (2) Where the tracks of one company are rightfully used by the employees of another company, the same duty is owed to employees of both companies by the company whose tracks are used. Roddy v Railroad, 104 Mo. 234; 2 Wood's Railway Law, p 1333. (3) The law is firmly settled in this State that the statutory duty to fence the right of way of a railroad is for the protection of human life, as well as for the protection of stock, and a neglect in erecting or maintaining such fences will render the company liable to an employee who is injured as a result of such neglect. Dickson v. Railroad 124 Mo. 140; Briggs v. Railroad, 111 Mo. 173; Trice v. Railroad, 49 Mo. 438. And the holding is the same in other jurisdictions. Railroad v. Reesman, 60 F. 370; Donnegan v. Erhardt, 119 N.Y. 468; Railroad v. Humes, 115 U.S. 522; Quackenbush v. Railroad, 62 Wis. 411. (4) Negligence is always a question for the jury, unless the facts are such that all reasonable men must draw the same inference from them, and the court can not direct a verdict where reasonable minds might fairly differ on the question of negligence. Eichorn v. Railroad, 130 Mo. 575; Railroad v. Ives, 144 U.S. 408; O'Mellia v. Railroad, 115 Mo. 205. (5) That the fence inclosing a railroad right of way was down one day is sufficient evidence of negligence to take the case to the jury, provided the defective fence was near a section house or station and could have been easily repaired, as in this case. Foster v. Railroad, 44 Mo.App. 11. (6) The defendant knew that a plank exposed for ten years to wind and weather would decay and a failure to prove inspection was evidence of negligence. 2 Wood's Railway Law, sec. 374. (7) The trial court abused its discretion in not permitting plaintiff, after closing her case, to put defendant's section foreman, who was present in court, on the stand, for the purpose of showing that it was his duty to inspect the track and fences and that no inspection had been made since Saturday preceding the accident.

Wallace Pratt and I. P. Dana for respondent.

(1) The burden rested on plaintiff throughout the trial of this case to prove every material allegation of the petition and to prove the allegations as pleaded. Current v. Railroad, 86 Mo. 62; Harty v. Railroad, 45 Mo. 368; McDermott v. Railroad, 87 Mo. 285; Roddy v. Railroad, 104 Mo. 244. (2) The presumption in this court is that the action of the trial court was correct and without error; the general ruling is that the appellate court assumes everything in favor of the acts and rulings of the trial court. Porth v. Gilbert, 85 Mo. 125; Smith v. Johnson, 107 Mo. 494; State v. Cunningham, 100 Mo. 382; State v. Harkins, 100 Mo. 666; State v. Flynn, 124 Mo.480. And that he who complains of error on the part of the trial court must show it. Goode v. Crow, 51 Mo. 215, State v. Burns, 85 Mo. 47; Flynn v. Neosho, 114 Mo. 567. Our contention is that appellant has failed to overcome the presumption which exists here in favor of the correctness of the action of the trial court, and has not shown that it committed error in any of its rulings. (3) Plaintiff failed to show that any breach of defendant's duty to her husband was the cause of deceased's injuries. Or, to put it differently, conceding for the purposes of argument that deceased was an employee of the defendant, that defendant owned and operated at the time the railroad on which the train was running which was derailed, and that it was derailed in consequence of a break in one of defendant's right of way fences, there was still a failure to prove the further essential thing, namely, that the break in the fence was due to the negligence of defendant.

OPINION

MARSHALL, J.

The plaintiff sues the defendant for five thousand dollars damages under sections 4426 and 4427, R. S. 1889, for the death of her husband Ralph Goodrich, who was killed near Hartwell, in Henry county, about one o'clock on the morning of July 9th, 1895, in consequence of the engine, on which he was the fireman, running over a horse that had strayed onto the track, and being derailed and wrecked. The negligence charged against the defendant is that it failed to erect and maintain lawful fences on the sides of its tracks, and that by reason thereof the horse strayed onto the track, causing the accident.

This is the second suit for the same grievance the plaintiff has brought. On the 17th of October, 1895, and within six months after the death, the plaintiff instituted suit against defendant for the recovery of damages resulting from the accident. That case resulted in a nonsuit at the May term of the Henry county circuit court. Afterwards on the 26th of May, 1896, more than six months after the death, but within a year after the nonsuit of the prior case, this action was begun. The petition is in two counts, which are alike except that the first count alleges that her husband was an employee of the defendant, the Kansas City, Clinton and Springfield Railway Company, and the second count alleges that her husband was an employee of the Kansas City, Fort Scott and Memphis Railway Company, and that at the time of the accident the latter company had a traffic arrangement with the former company, by which the latter company ran its cars over the tracks of the former company, and was so doing at the time of the accident.

The answer is a general denial, a plea of assumption of risk, and of contributory negligence on the part of the deceased or his fellow servants.

At the trial it appeared from the testimony introduced by the plaintiff that the freight train, upon the engine of which the deceased was fireman, left Springfield upon the night of July 8th, 1895, and when it reached a point about a mile northwest of Hartwell at about one o'clock a. m. on July 9th, 1895, a horse suddenly jumped on the track about an hundred feet ahead of the engine and ran along the track ahead of the engine until it reached a railroad bridge, in which it became entangled and was run over by the train, the horse was killed, and the engine and several cars were derailed. The deceased jumped from the engine and received injuries, from which he died some days later. On the west side of the track and just south of the bridge was a pasture of James Ramsey, containing about two acres, in which at night, and when not at work, he kept five of his horses. They were gentle, well-broke horses, and had been so kept in that pasture for a long time prior to the accident. Along the west side of the right of way of the railroad, and between it and Ramsey's pasture, there was a fence composed of four or five barbed wires attached to posts eight feet apart. Between the top wire and that next below it there was a six-inch plank, sixteen feet long, nailed to the posts. Ramsey had his horses in the pasture on Sunday and Sunday night, and although the entrance to the pasture was only about two hundred feet from the railroad fence, he did not observe anything wrong with the fence when he took his horses out of the pasture on Monday morning, nor indeed when he turned them into the pasture on Monday night. Edward Thompson, who lived with Ramsey, testified, however, that at about ten o'clock on Monday morning, July 8th, 1895, he went from the pasture onto and across the railroad, and in doing so climbed between the top wire and the one next below it, and that at that time the plank was "split and hanging to one end of the post," and that the space between the two wires was two or three feet. Thompson said nothing to any one about the plank being in this condition. McReynolds, who owned the land on which Ramsey and Thompson lived, described the fence to be built with five wires below the plank extending about two feet in height above the ground, then a space of twelve or fourteen inches, then the six-inch plank and then about fourteen inches above the plank another wire on top, thus making a fence about five feet high, and the space between the two uppermost wires of about thirty-four inches, in the center of which the plank was intended to be. Ramsey turned his horses into the pasture on Monday night, and when the accident occurred early Tuesday morning he went to the place and found that it was one of his horses that had gotten on the track, been killed and caused the accident. The next morning some horse hair was found on the top and next to the top wires of the fence, which corresponded in color with the hair of the dead horse. There was testimony showing that the officers of the Kansas City, Clinton and Springfield Railway Company and of the Kansas City, Fort Scott and Memphis Railway Company, were substantially the same; that the train was sent out on the order of H. S. Mitchell, who was division superintendent of both roads; that the trains of each road ran over the tracks of both roads, and that the employees were paid by the road over which they ran, the deceased during July, 1895, being paid partly by the one road and partly by the other in the proportion of the number of miles he ran over each road.

At the close of plaintiff's case the defendant demurred to the evidence and the court sustained the demurrer. There...