Henderich v. Kansas City, O. & S. Ry. Co.

• Decision Date: 06 November 1911
• Citation: 159 Mo. App. 190,140 S.W. 613
• Parties: HENDERICH v. KANSAS CITY, O. & S. RY. CO.
• Court: Missouri Court of Appeals

140 S.W. 613

159 Mo. App. 190

HENDERICH v. KANSAS CITY, O. & S. RY. CO.

Springfield Court of Appeals. Missouri.

November 6, 1911.

1. MASTER AND SERVANT (§ 315)—INDEPENDENT CONTRACTOR—CONSTRUCTION OF RAILROAD.

A railroad company is not liable for injuries sustained by a landowner through the acts of an independent contractor in constructing a portion of its road.

2. EVIDENCE (§ 208)—ADMISSIONS—AMENDED PLEADINGS.

Where, in an action by a landowner against a railroad company for injuries sustained to his crops by the entrance of stock during the construction of the road, defendant claimed that the omission to close the fence was the act of an independent contractor, defendant's original answer, admitting that at the time of building the road over plaintiff's premises it was doing the work as assignee of a certain individual, was admissible, though the answer had passed out of the record by amendment.

3. EVIDENCE (§ 460) — PAROL EVIDENCE— WRITTEN CONTRACT.

Where a contract to convey a railroad right of way did not identify the place where the road was to be constructed across plaintiff's farm, parol evidence that plaintiff signed the same, on the agreement that the line was to be constructed according to a specified survey, was admissible, under the rule that, while parol testimony cannot be admitted to contradict or vary the terms of a written contract, parol evidence is competent to identify the subject-matter; the instrument being applicable to several matters or things.

4. EVIDENCE (§ 183) — PAROL EVIDENCE— WRITTEN CONTRACT—LOSS.

Where a written contract was executed in duplicate, and defendant's vice president testified that he had made a search for defendant's duplicate, but had been unable to discover the same, and that he had inquired of an officer of the company to whom the other duplicate was delivered, and had been informed that he did not know where their copy was, but there was no showing that any effort had been made to find it, the proof was not sufficient to authorize the introduction of parol evidence of its contents.

5. RAILROADS (§ 114)—CONSTRUCTION—DAMAGES—WAIVER.

In an action by a landowner for injuries to crops by cattle, due to the negligence of defendant railroad company in failing to keep up fences during the construction of its road, whether defendant acquiesced in a change of the location of defendant's right of way, where it passed through plaintiff's land, held for the jury.

6. RAILROADS (§ 113)—CONSTRUCTION—DAMAGES TO PROPERTY OWNER—CROPS.

Where defendant railroad, without right, and without complying with the statute, entered on plaintiff's premises and took down his fence, so that cattle entered and destroyed his growing crops, defendant was then not entitled to the statutory three months within which to fence its right of way, to which it would have been entitled, had it condemned the right of way, or entered on a specific strip to which it had acquired a right, and was therefore liable for the injury sustained.

Appeal from Circuit Court, Polk County; C. H. Skinker, Judge.

Action by Joseph Henderich against the Kansas City, Ozark & Southern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

J. S. Clarke and L. O. Neider, for appellant. Rechow & Pufahl, for respondent.

GRAY, J.

In 1908, the plaintiff was the owner of a tract of land in the northeast quarter of section 29, township 28, range 15, in Wright county, Mo., and this suit was instituted to recover damages which he claims he sustained by reason of the defendant entering upon said premises and destroying his fences, so that stock entered thereon and damaged his crops in the sum of $500.

The defendant answered that it entered into a contract, in 1908, with the Ozark & Southern Construction Company, a corporation, whereby said construction company agreed to procure the right of way and construct a railroad for the defendant between the towns of Mansfield and Ava. Mo.; that by the terms of said contract the defendant had nothing to do with the construction of the road, and that the construction company was to construct the same in its own method, and turn it over to the defendant when ready for trains to run over the same; that said construction company, as an independent contractor, did construct said road through the said premises of the plaintiff.

It was also alleged in the answer that, on the 28th day of April, 1908, and prior to the construction of the railroad across the premises of plaintiff, plaintiff entered into a contract in writing, whereby he agreed to convey to one Quigley, or his assigns, by good and sufficient conveyance, a strip of land 100 feet wide over, through, and across his said lands, to be used for right of way of the railroad company; that on the ____ day of June said Quigley assigned his rights in said contract to the said Ozark & Southern Construction Company, and thereafter said construction company did enter upon said premises and build said railroad over and across the same.

In his reply, plaintiff admitted he signed a writing, by the terms of which he agreed to give a right of way over a certain portion of his lands; that at the time he executed the same he did so with the understanding that the right of way was according to a survey which had been made, and was on ground not in cultivation, and of little value, and that the occupancy of the same by the road would in no wise have interfered with his farm lands, buildings, and crops; but the road was not constructed according to said survey, but over an entirely different tract of land, to his damage, etc.

It is appellant's first contention that the evidence shows conclusively that it was the construction company that entered upon the premises of plaintiff and built the road. If this contention is correct, it disposes of the case. The evidence shows, however, that the road was constructed through plaintiff's premises in July, 1908, and the construction company was organized on the 22d day of July, 1908, and its contract with the railroad company was not entered into until the 29th day of July, of that year. J. B. Quigley, vice president and general manager of the defendant at the time of the trial, and chief engineer at the time the road was constructed, was called as a witness in behalf of the defendant, and he testified that by the last of July the grading through plaintiff's place had been done. Charles Barger testified that he commenced to work for the construction company on the 1st day of August, and at that time the road had been constructed across plaintiff's land. In fact, the evidence shows that the construction company was not organized until after the entry upon plaintiff's premises, and the construction of the road across the same.

The plaintiff introduced in evidence an abandoned answer of the defendant, in which it was admitted that defendant, through its agents, servants, and employés, entered upon the plaintiff's premises and constructed the road. The defendant company was organized the last of June, 1908, and was in existence at the time the road was constructed on plaintiff's premises. The evidence shows that one McIntosh, claiming to represent the railroad company, first entered upon plaintiff's premises and partly constructed the road across the same. The defendant objected to the introduction of the answer. This objection was based on the ground that the answer was filed to a former petition, and that plaintiff had amended his petition, describing a different tract of land. The original petition described the land in the northeast quarter of the northeast quarter of the section, and the amended petition simply the northeast quarter of the section. The answer was admissible in evidence. In the amended answer, the defendant was claiming that it had nothing to do with the construction of any part of the railroad, and this original pleading expressly admitted that it was engaged in building a railroad over the premises of plaintiff; and, further, that it was doing the same as the assignee of Quigley, under the contract of April 28th. The relation McIntosh sustained to the defendant company is not clearly shown in the record. The railroad company was organized to operate this road, and evidence went to the jury, without objection, that in July he was constructing the road over plaintiff's land, and claiming to represent the defendant company in so doing.

When all these facts and circumstances are considered, we do not believe the trial court would have been justified in declaring, as a matter of law, that the defendant did not enter upon the plaintiff's premises and cause the damage sued for.

The appellant claims that under the written contract of April 28, 1908, the plaintiff voluntarily gave the company a right of way over his lands, and is thereby estopped from asserting his claim for damages. That instrument reads:

"Mansfield, Mo., April 28, '08. In consideration of one dollar ($1.00) and the benefits that will accrue the...