Huff v. St. Joseph Railway, Light, Heat and Power Company

• Citation: 111 S.W. 1145,213 Mo. 495
• Parties: JUAN T. HUFF, Appellant, v. ST. JOSEPH RAILWAY, LIGHT, HEAT AND POWER COMPANY and CITY OF ST. JOSEPH
• Decision Date: 03 July 1908
• Court: Missouri Supreme Court

111 S.W. 1145

213 Mo. 495

JUAN T. HUFF, Appellant, v. ST. JOSEPH RAILWAY, LIGHT, HEAT AND POWER COMPANY and CITY OF ST. JOSEPH

Supreme Court of Missouri, First Division

July 3, 1908

Appeal from Buchanan Circuit Court. -- Hon. Henry M. Ramey, Judge.

Reversed and remanded.

Kendall B. Randolph for appellant.

(1) It was error to exclude evidence showing that the railway company had laid its tracks in the street without any authority from the city to do so, and that they were trespassers in said street. This record shows that such evidence was peculiarly competent in view of the fact that the court by instruction 3, given for the defendant railway company, and after having excluded such evidence, told the jury that the company had a right in such street. Street railway tracks placed in a public street of a city without a franchise are a public nuisance. Sherlock v Railroad, 142 Mo. l. c. 183, citing 23 Am. and Eng Ency. Law, 1093. (2) Instruction 3, given on behalf of the railway company, is misleading, and is a comment on the evidence. It tells the jury in the most pointed language that the company was not required to keep its tracks in a safe condition, and was not required to keep the space between the rails filled with dirt, cinders or any other material so that the surface between the rails would be flush with the top of the rails, but that it was only required to use ordinary care to keep said space between said rails in a reasonably safe condition, etc. It would have been enough to have told the jury that they were only required to keep the track in a reasonably safe condition. The phrase in the last line of said instruction, "reasonably safe under the circumstances," is also misleading. It was the absolute duty of the company to lay its tracks to grade. Sherlock v Railroad, supra; Cross v. Railroad, 77 Mo. 320; Smith v. Railroad, 98 Mo. 24; Knapp, Stout & Co. v. Railroad, 126 Mo. 26. The words "reasonably safe under the circumstances" left too much to the jury. (3) Instruction 5, given for the railway company, is erroneous in this: It repeats instruction 3 with reference to the company not being required to keep its tracks in a safe or good condition; and in stating that it is immaterial how high the rails or ties of the track extended above the street on the outside of the rails -- Sherlock v. Railroad, supra -- or that any holes may have been in the street. This instruction tells the jury that the street car company was not liable for any condition of the street outside of the rails, even though immediately against the rails there was a hole. It should, at least, have been required by this instruction to keep the street in repair, as far as the ends of its ties extended outside of the rails. This instruction is also erroneous in this: That it tells the jury that they may take into consideration the purposes for which the street, at the place of injury, was being used at the time of the injury. Plaintiff had a right to have the street at that point in such condition of repair that it could be used for all purposes for which a street is ordinarily used. The streets of a city must be kept in a reasonably safe condition for travel either by day or by night. Blake v. St. Louis, 40 Mo. 569; Bowie v. Kansas City, 51 Mo. 454; Bassett v. St. Joseph, 53 Mo. 290; Welsh v. St. Louis, 73 Mo. 71; Russell v. Columbia, 74 Mo. 480; Kiley v. Kansas City, 87 Mo. 103; Carrington v. St. Louis, 89 Mo. 208; Roe v. Kansas City, 100 Mo. 190; Haniford v. Kansas City, 103 Mo. 172; Franke v. St. Louis, 110 Mo. 516; Flynn v. Neosho, 114 Mo. 567. (4) Instruction 11 does not correctly state the law. It tells the jury that all statements made by plaintiff, while upon the stand, testifying, which are against her own interests, if any, must be accepted by them as absolutely true, and that all statements made by her in her own favor should be given such weight and credence as the jury deem them fairly entitled to. The rule announced in this instruction has often been applied to admissions and statements made out of court, but the parts of the testimony of the witness before the jury cannot be separated in that way. It is the duty of the jury to give the whole testimony such weight and credence as they deem it fairly entitled to. This form of instruction has been expressly condemned by the appellate courts of this State. Culbertson v. Railroad, 50 Mo.App. 562; Ephland v. Railroad, 137 Mo. 198; Zander v. Railroad, 206 Mo. 260.

R. A. Brown, W. B. Norris and O. E. Shultz for respondents.

(1) Defendants' demurrer offered at the close of plaintiff's case should have been sustained, for the reason that plaintiff wholly failed to show by any evidence that the injuries sustained by her resulted from any negligence of the defendants, or either of them. (2) The court did not commit error in excluding the evidence offered for the purpose of showing that the railway company did not have any franchise to maintain and operate its railway tracks in Alabama street. Plaintiff in her petition alleged that the company was organized and incorporated as a street railway company under the laws of Missouri; that it was a common carrier of passengers, and as such had constructed its tracks and operated its cars over the streets of the city of St. Joseph, including Lake avenue and Alabama street. Her petition in no way suggested or intimated that the company was not lawfully operating its cars over and in Alabama street. Under the allegations of her petition the presumption followed that the defendant railway company was lawfully in Alabama street. Under such circumstances, it was wholly incompetent for plaintiff to offer evidence in any way tending to prove that said defendant was maintaining its tracks in and operating its cars over said street without a proper franchise therefor. Where a company is maintaining and operating a line of railway tracks upon a street, the presumption is that it is lawfully maintaining and operating such line of railroad. Independence v. Railroad, 86 Mo.App. 588. Aside from the reasons above stated, the testimony was wholly incompetent for any purpose. If the defendant company negligently maintained its tracks in the street, even though lawfully there, and if, on account of such negligence, plaintiff was injured, a right of recovery would follow. She would have had no greater right had the defendant company been a trespasser on Alabama street. (3) The company was not required to keep its tracks in a safe condition, nor was it required to keep the space between the rails thereof filled with dirt, cinders or other material so that the surface between the rails would be flush with the top of the rails. The law imposed upon it no such burdens. It was only required to exercise reasonable care to keep its tracks in a reasonably safe condition. The instruction imposed upon it every duty or obligation imposed by the law of this State. 3 Elliott on Railroads (2 Ed.), p. 150; McGauley v. Railroad, 179 Mo. 592. Defendants were not insurers of the safety of pedestrians; the only duty devolving upon them was to use ordinary care to keep that portion of the street where plaintiff fell in a reasonably safe condition for travel. Kiley v. Kansas City, 87 Mo. 103; Maus v. City, 101 Mo. 613; Franke v. City, 110 Mo. 516; Carvin v. City, 151 Mo. 334; Warren v. City, 153 Mo. 593. (4) Instruction 11, given on behalf of defendants, is criticised. There were no admissions made by plaintiff against her own interest except her admission that she stumbled over the east rail of the Hyde Valley line, and that she was at that time running to escape threatened danger from a runaway team. The admission that she stumbled over the east rail of the track eliminated the question of the condition of the track and the street at every other point. No one else witnessed the accident. There was no testimony whatever as to how or where the accident occurred, other than plaintiff's. For the purposes of this case, her admissions in the respects named were absolutely binding upon her. They were not controverted by other testimony of the plaintiff or the defendants. They were made in the presence of counsel, before the court and jury in a judicial proceeding, and come within the rule laid down in State v. Brooks, 99 Mo. 142; Houston v. Railroad, 118 Mo.App. 470; Keen v. Schnedler, 92 Mo. 526.

WOODSON, J. Valliant, P. J., is absent; Graves, J., concurs in the result.

OPINION

WOODSON, J.

This suit was begun in the circuit court of Buchanan county, and was to recover the sum of $ 5,000 damages for personal injuries sustained by plaintiff in consequence of a fall, caused by the alleged negligence of the defendant in permitting one of the streets of the city to become and remain in an unsafe and dangerous condition, by permitting the tracks of the railway company to extend several inches above the surface of the street, which caused her to trip and fall while passing over them.

There was a trial upon the merits before the court and a jury, which resulted in a verdict and judgment for the defendants; and, after taking the proper preliminary steps therefor, the plaintiff appealed the cause to this court.

The facts of the case are few and simple, and there is no controversy as to what the evidence tends to show, except upon one point, and that is as to the condition of the surface of the street between the rails of the street car track at the place of the injury on the night of its occurrence, which will receive special consideration later on.

The facts as disclosed by the record are as follows:

The defendant, St. Joseph Railway, Light, Heat & Power Company is a street railway company, maintaining its tracks through the city of St. Joseph and operating cars thereon as a common...