Kelsay v. the Missouri Pacific Railway Company

• Decision Date: 25 June 1895
• Parties: Kelsay v. The Missouri Pacific Railway Company, Appellant
• Court: Missouri Supreme Court

30 S.W. 339

129 Mo. 362

Kelsay v. The Missouri Pacific Railway Company, Appellant

Supreme Court of Missouri, First Division

June 25, 1895

Appeal from Vernon Circuit Court. -- Hon. D. P. Stratton, Judge.

Reversed.

R. T Railey for appellant.

(1) The first count of the petition fails to state a cause of action pleads only a legal conclusion. Pier v Heinrichoffen, 52 Mo. 336; Waldhier v. Railroad, 71 Mo. 516; Harrison v. Railroad, 74 Mo. 369; Nichols v. Larkin, 79 Mo. 271; Gurley v. Railroad, 93 Mo. 450. (2) The court should have sustained a demurrer to the evidence on the first count. (3) If plaintiff relied on a violation of Revised Statutes, 1889, section 2608, requiring defendant to ring its bell and sound the whistle of its locomotive when approaching a crossing. Emerson v. Railroad, 111 Mo. 161; Reynolds v. Railroad, 85 Mo. 94. (4) Plaintiff's instruction number 2 should not have been given. The second count of the petition also fails to state a cause of action. The allegation as to defendant's neglect of duty in regard to the embankments and weeds do not give the plaintiff any right of action against defendant. Rutledge v. Railroad, 110 Mo. 332; Julia Bldg. Ass'n v. Telephone Co., 88 Mo. 273; Mfg. Co. v. Railroad, 113 Mo. 309; Welsch v. Railroad, 72 Mo. 452; Seibert v. Railroad, 72 Mo. 566; Turner v. Thomas, 71 Mo. 596; Hughes v. Railroad, 66 Mo. 325; Lafferty v. Railroad, 44 Mo. 292; Cordell v. Railroad, 70 N.Y. 119; Railroad v. Feller, 84 Pa. St. 226. (5) The damages are excessive. To entitle plaintiff to recover present damages for apprehended future consequences there must be such a degree of probability of their occurring as amounts to a reasonable certainty that they will result from the original injury. Strohm v. Railroad, 96 N.Y. 306; Curtis v. Railroad, 18 N.Y. 542; Fry v. Railroad, 45 Iowa 416; White v. Railroad, 18 Am. and Eng. R. R. Cases (Wis.), 215; 1 Sedgwick on Damages [8 Ed.], sec. 172; Railroad v. Henry, 62 Ill. 142; DeCosta v. Co., 17 Cal. 613. (6) The undisputed evidence shows plaintiff was guilty of contributory negligence precluding her recovery. It having been the duty of the plaintiff to look and listen for the approach of the train, it is immaterial whether she saw it or not, provided she could have done so by the exercise of ordinary care upon her part. In other words, "the means of knowing by ordinary care is evidence of knowledge." Muldowney v. Railroad, 39 Iowa 620; Speck v. Riggin, 40 Mo. 405; Rhodes v. Outcalt, 48 Mo. 370; Hulett v. Railroad, 67 Mo. 240; Mason v. Black, 87 Mo. 342; Jackson v. Railroad, 104 Mo. 459.

Hoss & King for respondent.

(1) The first count stated a good cause of action. Sullivan v. Railroad, 97 Mo. 113; Pope v. Railroad, 99 Mo. 400; Schneider v. Railroad, 75 Mo. 295; Goodwin v. Railroad, 75 Mo. 73; Owens v. Railroad, 58 Mo. 386; Braxton v. Railroad, 77 Mo. 455; Minter v. Railroad, 82 Mo. 128; Ravenscraft v. Railroad, 27 Mo.App. 622; Barr v. Railroad, 30 Mo.App. 251; Boom v. Railroad, 20 Mo.App. 232; Hill v. Railroad, 49 Mo.App. 520; Foster v. Railroad, 115 Mo. 177. (2) Plaintiff's instruction number 2 correctly stated the law. Kenney v. Railroad, 105 Mo. 270; Crumpley v. Railroad, 111 Mo. 152. (3) The question of negligence on the first count was one for the jury. Dickson v. Railroad, 104 Mo. 491; Murray v. Railroad, 101 Mo. 242; Weller v. Railroad, 120 Mo. 635; Kenney v. Railroad, 105 Mo. 270; Gratiot v. Railroad, 116 Mo. 450. (3) And even if defendant's testimony entirely disproves and overthrows plaintiff's testimony, still the plaintiff is entitled to have the judgment of the jury on the credibility of defendant's witnesses and the value of their testimony. Boom v. Railroad, 20 Mo.App. 232; Wilburn v. Railroad, 48 Mo.App. 224. (4) The second count of the petition stated a cause of action. It is actionable negligence on the part of defendant to permit weeds to so grow upon its right of way as to obscure the sight of an approaching train, and that the weeds in this case, having not been cut during the summer previous to this accident, did obscure the approach of a train from the southeast, so that the crossing became absolutely dangerous, is beyond controversy. Rapp v. Railroad, 106 Mo. 423; Moberly v. Railroad, 17 Mo.App. 518; Railroad v. Barr, 31 Ill.App. 57; Richardson v. Railroad, 45 N.Y. 846; 4 Am. and Eng. Encyclopedia of Law, p. 911, note 2; Mackay v. Railroad, 35 N.Y. 75. (5) The plaintiff was not guilty of contributory negligence so as to bar her recovery. (6) The damages were not excessive. (7) The evidence in this case shows permanent injuries, and if there was any evidence tending to show permanent or continuous injury, it was a question to be submitted to the jury. Beck v. Dowell, 40 Mo.App. 71; Railroad v. Barron, 5 Wall. 90; Stevens v. Railroad, 96 Mo. 207; Nagel v. Railroad, 75 Mo. 653; Kerr v. Frogue, 5 Am. Rep. 146; Stutz v. Railroad, 73 Wis. 147; Eddy v. Wallace, 49 F. 801.

OPINION

Macfarlane, J.

Plaintiff sues for damages on account of personal injuries by being struck by a train of defendant, on a public crossing in Vernon county. The petition is in two counts. The first charges negligence generally in running and managing the train. The second charges negligence in permitting an embankment to remain upon its right of way and suffering weeds to grow thereon, thus obstructing plaintiff's view of the track as she approached it. The answer is a general denial and a plea of contributory negligence. The plea charges that plaintiff negligently drove upon the track without taking any precaution to ascertain whether the train was approaching.

A trial resulted in a judgment for plaintiff for $ 6,000 from which defendant appealed.

On the trial defendant objected to the introduction of any evidence, on the ground that neither count of the petition stated facts sufficient to constitute a cause of action. The objection to the first count was that a mere general charge of negligence was not a statement of facts required by the code. To the second count the objection was made that obstructing the view of the track at a crossing was not actionable negligence. It will not be necessary to consider these objections.

The evidence shows that defendant's railroad runs into the city of Nevada from the southeast, and that a public road running north and south crosses it at an angle of about forty-five degrees. At the time of the accident, September 13, 1892, on the north of the railroad right of way, and east of the public road, was a field of corn. The railroad track from the southeast approached the public road in a cut for a distance of about four hundred and twenty feet. The cut immediately east of the crossing was about three and one half feet below the natural surface of the ground. Further east it acquires a depth of four and one half feet and gradually lessens to the end. In making this cut the dirt had been deposited on the right of way, about twenty-five feet north of the track. Upon the embankment thus formed was a growth of weeds and grass. The public road was sixty feet wide, and the embankment extended up to this road. This embankment twenty-one feet from the center of the public road, was two feet above the natural surface of the ground. Forty-six feet further east it was about three feet, which was the highest point. The average to the end of the cut was about two feet. There was no evidence that weeds grew between the railroad and the embankment. The railroad was practically straight, having a curve of only three degrees to the south. All witnesses who had knowledge testified that the corn in the first place, and the embankment and weeds afterward, greatly, if not wholly, obstructed the view of the track to the southeast, and a train thereon, to a traveler on a public road, approaching the railroad from the north, could not be seen until after he had passed the embankment which was twenty-five feet from the track.

The county surveyor who was called as a witness by plaintiff, testified that he had taken measurements and observed approaching trains, and a person standing in the public road, or seated in a buggy, at a point twenty-five feet from the railroad, and, at any point between that and the crossing, had an unobstructed view of the track toward the southeast for a fourth of a mile; that this was the case regardless of the height of the embankment and weeds thereon. The evidence of this witness was corroborated by others and contradicted by none, unless that of plaintiff. The view of the railroad to the northwest was unobstructed at any point after the right of way was reached.

On the thirteenth day of September, 1892, plaintiff drove along this public road from the north on her way from Nevada to her home. She was driving a gentle and tractable horse, which was accustomed to trains and was not frightened by them. She had been over this crossing several times before, though this was not her usual road from Nevada to her home. As her horse stepped upon the track he was struck by a passenger train from the east and killed, the buggy was torn up and plaintiff severely injured. There was some evidence tending to prove that the required statutory signals were not given in approaching this crossing.

Plaintiff testified as a witness on the trial; and as her right to recover depends largely on her own evidence, and as it is somewhat indefinite, we quote largely from it, as it bears on the question of contributory negligence. She testified in chief:

"I had been to Nevada and had done my errands and was returning home rather earlier than common and had some cattle that I wanted to sell and I took that south road; I have traveled that road before, and this time I wanted to go that way, and I was traveling along slow and I was watching...