Humphreys v. Chicago, M., St. P. & P. R. Co.
| Decision Date | 13 May 1935 |
| Docket Number | No. 17851.,17851. |
| Court | Missouri Court of Appeals |
| Parties | HUMPHREYS v. CHICAGO, M., ST. P. & P. R. CO. |
Appeal from Circuit Court, Grundy County; A. G. Knight, Judge.
"Not to be published in State Reports."
Action by Truman Humphreys against the Chicago, Milwaukee, St. Paul & Pacific Railroad Company. Judgment for plaintiff, and defendant appeals.
Reversed and remanded.
Morrison, Nugent, Wylder & Berger and Charles C. Byers, all of Kansas City, for appellant.
Platt Hubbell, of Trenton, for respondent.
This is an action brought under section 4761, R. S. 1929 (Mo. St. Ann. § 4761, p. 2144), for the killing of ten head of mules and one horse, alleged to have been caused by their having been struck by a railroad train of the defendant. There was a verdict and judgment in favor of plaintiff in the sum of $900.00. The court, under the provisions of the statute, rendered a judgment in favor of plaintiff in twice that sum or $1,800.00. Defendant has appealed.
The petition upon which the case went to trial alleges that the defendant negligently failed to construct and maintain a reasonably sufficient gate at a farm crossing in a fence running along its right of way; that the gate was not sufficient to prevent mules, horses and cattle from going through the same. The answer consists of a general denial and pleads contributory negligence on the part of the plaintiff.
The facts show that defendant's railroad tracks run in a northeasterly and southwesterly direction at its station near the town of Galt. The station is located a short distance southwest of the gate in question and north of defendant's right of way, the gate being in the fence along the south side of the right of way separating said right of way from the pasture of one Uriah Humphreys. There is evidence from which the jury could conclude that the livestock in question escaped from the farm of the plaintiff, which is located a short distance from the pasture of Uriah Humphreys, and that they proceeded over a highway to an opening in said pasture, described in the evidence as having been located near a hickory tree on the east side of the pasture, and as existing for a long period of time. Thereafter they strayed to the gate in question and proceeded through or around the east end of the gate on to defendant's right of way and subsequently were struck by a train of the defendant at a bridge located about 822 feet southwest of the gate in question.
The evidence shows that the gate was an old one and in bad repair; that it consisted of two horizontal iron bars at the top and bottom of the gate and three perpendicular bars, one at each end and one in the middle. These bars formed a framework upon which wire was attached. The gate was hung on a post at the west side and was fastened to another post on the east side by means of a chain. The horizontal rods were separated at the bottom, the "upright piece was out at the lower steeples and let the piece loose down to brace or hold the gate"; that there was a space two or three feet wide between the top of the east end of the gate and the gate post and some rake teeth were "stuck * * * at the top and bottom through the wire and wired to the post." This made the gate "longer, filled up the space"; that the gate sagged in the middle and at the east end; that the "bottom of one side was out and sagged down on the ground, quite worn"; that it had been in this condition for two or three years.
The mules were struck about two a. m. No one saw the collision. Early the next morning plaintiff examined the gate and found that its east end leaned toward the north and it appeared from evidences there, consisting of hoof prints, that the mules had gone around the east end of the gate "between the east gate post and the top of the gate." The east end of the gate had a chain which, when fastened to the gate, was sufficient to turn livestock even in its defective condition. It was found that the gate was not chained the morning after, the mules were killed.
It is insisted by the defendant that its instruction in the nature of a demurrer to the evidence should have been given. We think that this contention must be sustained. There is no evidence that the gate was defectively constructed originally and plaintiff's evidence shows that even though the gate was in a bad state of repair it would turn livestock when it was chained. The evidence is undisputed on this point. It is true that the chain was loose when the gate was examined the morning after the mules were killed and the jury were at liberty to infer that the chain was not fastened at the time the mules escaped through the gate or between the gate and the post to which it was fastened by means of the chain, yet, there could be no recovery on the part of the plaintiff unless he showed that the gate had been unchained for a sufficient length of time for the defendant to have discovered it and remedied the situation prior to the escape of the mules through the gate and there is no evidence on this point. Goodrich v. K. C., C. & S. R. Co., 152 Mo. 222, 53 S. W. 917; Townsley v. Mo. Pac. Ry. Co., 89 Mo. 31, 1 S. W. 15; Foster v. St. Louis, I. M. & S. Ry. Co., 44 Mo. App. 11.
Defendant makes a point that the court erred in permitting plaintiff to testify as to the position of the gate upon the morning following the collision, for the reason that the gate had been moved between that time and the time that the plaintiff saw it. There is evidence that plaintiff examined the gate at six or seven o'clock the next morning. There is no evidence that the gate was moved before seven o'clock of that morning.
It is insisted that the court erred in overruling defendant's objections to the questions propounded by plaintiff to defendant's witnesses, Burke and Gray, upon cross-examination, wherein these witnesses were asked, in effect, whether it appeared to them that the livestock had been struck by a train and knocked through the bridge. These witnesses answered in the affirmative. The admission of this testimony was undoubtedly erroneous. The witnesses fully described to the jury what they saw about the condition of these animals and the surroundings and the jury were as competent to say what caused their injury and death as were the witnesses. Muff v. Wabash, St. L. & P. Ry. Co., 22 Mo. App. 584; Madden v. Mo. Pac. Ry. Co., 50 Mo. App. 666.
The witness, Gray, testified that he found five of the mules under the bridge, one east of the bridge on the south side and outside of the right of way 12 or 15 feet from the track and three mules west of the bridge; that the mules were scarred and skinned in places. The evidence shows that the railroad tracks as they approached the bridge were upon a fill with wooden fences on either side. Plaintiff testified that after the livestock were killed he found that the banister on the south side of the bridge had been knocked off; that there was one dead mule south of there; that there was one mule in the middle of the creek under the steel bridge; that there were four mules "on the north side" of the bridge which were "torn all to pieces" and "the sorrel horse was there"; that there was one mule about 100 yards southwest of the bridge with a leg broken and a hole torn in his side; that there was a pair of mules "just ground up" about a quarter of a mile southwest of the bridge; that there was one mule lying in the southwest corner of the right of way on the east side of the bridge. The witness did not see any scratches on him. The mule in the middle of the creek looked like she had all of her legs broken.
Plaintiff further testified that one of the three mules that he found west of the bridge had his leg broken and a hole torn in his side; that on the rails and ties of the bridge there was "corruption, blood and hair thrown against the steel, well I don't know what you call them, girders or whatever you call them."
Undoubtedly there was sufficient testimony from which the jury could infer that the livestock had been struck by a train bound southwesterly but this did not render harmless the error of having the witnesses express their opinion that the train struck the livestock. Muff v. Wabash, St. L. & P. Ry. Co., supra.
There was no error in the action of the court in permitting the witnesses, Gray and Williams, to state that after the collision a new gate was installed at the location where the mules escaped from the pasture of Uriah Humphreys. The witness, Gray, stated, on direct examination, that the gate "was in good enough condition for a farm gate * * * it was a substantial gate."...
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