Kennedy v. North Missouri R.R. Co.

• Decision Date: 31 October 1865
• Citation: 36 Mo. 351
• Parties: ABRAHAM KENNEDY Respondent, v. NORTH MISSOURI RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

36 Mo. 351

ABRAHAM KENNEDY Respondent,

v.NORTH MISSOURI RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1865.

Appeal from St. Charles Circuit Court.

This suit was brought in the St. Charles Circuit Court in 1861, and was tried there upon an amended petition filed on the 18th of May, 1864, which stated that the defendant--a corporation chartered in 1851--built railroad through Warren county, which passed over and through the plaintiff's farm, cutting off his residence from his water and timber, and that the defendant wilfully, maliciously and negligently failed to make the plaintiff a safe and good crossing over the railroad track; that the defendant offered to make a safe and good crossing above the tops of the cars, by putting a bridge over the track where there was a cut of sufficient depth for a bridge, and that defendant wilfully, maliciously and negligently failed and refused to build for plaintiff a crossing that could be crossed without great risk, particularly when coming from the north to the south side, as the cars could not be seen coming from the east until you are upon the track, the crossing being at the west end of a deep cut; that on the 22d day of October, 1860, while the plaintiff was coming from the north part of his land with his wagon and team, with three barrels of water and his daughter,--in crossing the track, his wagon and team, his daughter and himself, were struck by the train going west, the wagon broken, his daughter and both horses killed, and himself so bruised and crippled that he had to call a physician and expend a large sum o money to be cured: all which was caused and occasioned by the negligence and unskilfulness. criminal intent, carelessness and incompetency of the officers, agents, servants and employees of defendant whilst running and conducting and managing the locomotives, cars and trains of cars of defendant, and by reason of the failure of defendant, its agent and employees, to erect and maintain a proper and suitable farm-crossing across said railroad, whereby he was damaged in the sum of ten thousand dollars.

The answer admitted the construction of the railroad through the plaintiff's farm, as they had a lawful right to do (having acquired the right of way), but denied that they had failed to make the plaintiff a safe and good crossing for the use of his farm, and averred that they had made him a good and sufficient farm-crossing, at his request and at the place selected and designated by himself when the railroad was built, and that it was a good, adequate and sufficient farm-crossing, which could be used with safety and convenience by the exercise of ordinary care and prudence, and that the same had been used by the plaintiff from the year 1857 down to the time of the accident; it ignored the injury and required proof; and it denied that the accident and injury were caused or occasioned by any negligence, unskilfulness, criminal intent, carelessness or incompetency of any officer, agent or employee of the defendant whilst running, conducting or managing the trains, or by any failure on its part to build and maintain a suitable farm-crossing for plaintiff's use; and denied all damage in the premises.

The case shown by the evidence was nearly as follows:--About eight o'clock in the morning of the 22d of October, 1860, a passenger train was moving westwardly on time at the usual rate of speed (15 to 20 miles an hour), and was passing through a cut ten feet deep on a straight line of track with ascending grade, approaching a farm-crossing on the plaintiff's farm, the engineer, conductor and brakesman being all at their posts and on the alert. At the same time, the plaintiff and his daughter, a woman grown, in a wagon with three barrels of water and two horses, were approaching the crossing from the north side on a farm road leading from the spring to the house on the farm, while a hill or low ridge on his left intercepted his view of the track and coming train, and also the view from the train, until he should be within twenty feet of the crossing. He knew it was about time for the train to be passing, but, being in some hurry, thought he could get over before the train would come; and he drove right on without stopping to listen, or to get out of his wagon and look up and down the track, before venturing to drive over. When the train got within a quarter of a mile of the next station (at Wright City) beyond the crossing, and while as yet more than 200 yards distant from the crossing, and before the horses and wagon came in sight of those on the train looking out through the cut, the fireman (as usual) had begun to ring the bell as a signal for the station, and the brakesman at the rear end of the train was looking out for the station, when he, the fireman, and the engineer, almost at the same instant, caught sight of the horses' heads coming into view within twenty feet of the track. The engineer instantly whistled the signal for “down brakes” and reversed his engine, and every possible effort was made to stop the train. The horses had got upon the crossing, and there stood immovable with terror. The plaintiff tried first to drive them over, and then to back them off, but could do neither; and they were immediately struck.

It was proved that the horses, worth some $200, were killed, the wagon damaged to the amount of $25, the plaintiff somewhat bruised, and the woman killed; and that the plaintiff, though he was able to attend the funeral of his daughter, was for some time unable to work as usual, and had paid a small sum for doctor's bill; but did not appear to have been seriously injured. The crossing was in a good state of repair, nor did it appear that the accident was attributable at all to any defect or difficulty with the crossing itself.

It also appeared that it was not the practice or custom, on this or other railroads, to give a signal by bell or whistle for a private farm-crossing, and none was given specially for this crossing, on this occasion, otherwise than as above stated.

It was in evidence that a person standing on or near to the crossing could see half a mile and more down the track in the direction in which the train was coming; that the crossing had been made where it was at the instance of the plaintiff himself in 1857, and that he had used it ever since; that, on the whole, it was the best location on the farm for a crossing, unless a bridge were to be built over the cut; that the defendant had long before offered to build a bridge if plaintiff would pay the expense, as was usual in such cases, and that he had refused; that the crossing was a safe and good one if used with ordinary care and prudence, and was built in the same manner as other farm-crossings; and several intelligent witnesses testified, that, under such circumstances and at such a time, they would, and they thought any man of ordinary care and prudence would, stop and listen, and get out and look up and down the track, before venturing to drive over.

It was in evidence that the defendant had acquired the right of way through this farm and made compensation to the plaintiff therefor.

Plaintiff offered evidence to show that there was a crossing of a public highway over the railroad a mile or more to the eastward of this farm-crossing, and that the employees on the train had not rung the signal bell for that public road-crossing-some witnesses, over a mile off at the time, stating that they had not heard the bell ring.

Plaintiff offered evidence to show that a bridge could have been built over the cut for a farm-crossing, and that such a crossing would have been safer.

The following instructions were given for the plaintiff, and the defendant excepted:

1. If the jury believe from the evidence that the plaintiff has sustained injuries to his person and property by reason of the negligence or unskilfulness of the officers or employees of defendant whilst running, conducting or managing any locomotive, car, or train of cars, on the railroad of defendant, then they will find for the plaintiff, and assess his damages at such sum as they consider sufficient to compensate him for such injuries, not exceeding ten thousand dollars.

2. If the jury find from the evidence that in the construction of defendant's railroad, and in the location and construction of the crossing at which the accident occurred, there was negligence or unskilfulness on the part of the officers, agents or employees of the railroad company, and that by reason of such negligence or unskilfulness the plaintiff, while using the crossing with his wagon, was unable to perceive the approach of the train of cars in time to avoid being run over, and was immediately, in consequence thereof, struck by the locomotive and sustained injuries to his person or property, then the jury will find for the plaintiff and assess his damages accordingly, unless the jury also believe from the evidence that there was negligence on the part of the plaintiff.

3. In estimating the amount of care and circumspection which a party ought to exercise in order to avoid inflicting injury upon others, it is proper to take into consideration the nature and extent of the injury liable to be caused by the absence of such care and circumspection; and hence. from the known destructive effects of railroad collisions, the agents and officers of railroad companies are held to a greater degree of care and circumspection in running their trains than the drivers of ordinary vehicles on common roads; and if the jury believe from the evidence that owing to the location and construction of the crossing, and the top graphy of the adjacent localities, more than ordinary care ought to have been used by the person in charge of the train in approaching that point, either by sounding a signal, by lessening the speed of the train, or by any other means calculated to avert a collision, and that no such special or extraordinary care was taken or means...