Liggett v. Excelsior Powder Manufacturing Company

• Decision Date: 08 April 1918
• Parties: CLARA E. LIGGETT v. EXCELSIOR POWDER MANUFACTURING COMPANY, Appellant
• Court: Missouri Supreme Court

202 S.W. 372

274 Mo. 115

CLARA E. LIGGETT v. EXCELSIOR POWDER MANUFACTURING COMPANY, Appellant

Supreme Court of Missouri, First Division

April 8, 1918

Appeal from Jackson Circuit Court. -- Hon. James H. Slover, Judge.

Affirmed.

Kinealy & Kinealy for appellant.

(1) The second count of plaintiff's petition being based upon the idea that the plant is a public nuisance became near a railroad, defendant's objection to the introduction of any evidence should have been sustained, since: (a) Section 14 of article 12 of the Constitution declaring railroads to be "public highways," merely means that they are subject to legislative control and have certain quasi-governmental rights, such as eminent domain. Farber v. Mo. Pac. Ry. Co., 116 Mo. 81. (b) The railroad is private property and no one has a right upon it without the consent of the railroad company. Nevada v. Eddy, 123 Mo. 546; Isabel v. Railroad, 60 Mo. 475. (c) Even if appellant's plant were a dangerous thing, yet the fact that it is located near a railroad could not constitute it a public nuisance, although it might be a private one. 22 Cyc 1152; Martin v. St. Joseph, 136 Mo.App. 320. (d) For the maintenance of a private nuisance no one has a right of action except the owner of the premises, and not even he if he consents to it. Ellis v. Railroad, 63 Mo. 131; Whalen v. Baker, 44 Mo.App. 290; Kavanaugh v Barker, 131 N.Y. 211. (e) Mrs. Liggett's complaint if any she has, should be founded on negligence. The defendant would then have open to it the defenses of accident, contributory negligence and the exercise of ordinary care, which could not be set up in a case based upon the maintenance of a nuisance. Casey v. Bridge Co., 114 Mo.App. 61; Paddock v. Somes, 102 Mo. 239. (2) The instruction that plaintiff could not recover should have been given because: (a) The petition does not state a cause of action, nor does the evidence make out a case of liability, inasmuch as a railroad is not a public highway in such sense as to make the powder plant a public nuisance, because of proximity to the railroad. 22 Cyc. 1152; Farber v. Mo. Pac. Ry. Co., 116 Mo. 81; City of Nevada v. Eddy, 123 Mo. 546; Isabel v. Railroad, 60 Mo. 475; K. C. Ry. v. K. C. Ry., 118 Mo. 599; Schaefer v. Railway Co., 128 Mo. 64; Reynolds v. Transit Co., 189 Mo. 409; Kavanaugh v. Barker, 131 N.Y. 211; Ellis v. Railroad, 63 Mo. 131; Whelan v. Baker, 44 Mo.App. 290. (b) The explosion and not the maintenance of the alleged nuisance was the proximate cause of plaintiff's injuries. Hull v. Thompson Tran. Co., 135 Mo.App. 119; Clemens v. Railroad, 53 Mo. 366; Logan v. Wabash Ry. Co., 96 Mo.App. 461; Lawrence v. Ice Co., 119 Mo.App. 316; Haley v. Transit Co., 179 Mo. 30; Bokamp v. Railroad, 123 Mo.App. 270. (c) As the evidence, following the petition, shows that plaintiff was injured only by concussion from the explosion, she cannot recover simply by showing the explosion and injury. Thurmond v. Lime Ass'n., 125 Mo.App. 73; Booth v. Railroad, 140 N.Y. 267; Benner v. Dredging Co., 134 N.Y. 156; Simon v. Henry, 62 N. J. L. 486; Sowers v. McManus, 214 Pa. St. 244; Kerbaugh v. Caldwell, 80 C. C. A. 470; Bessemer C., I & L. Co. v. Doak, 152 Ala. 166; Hieber v. Cent. Ky. Tr. Co., 145 Ky. 108. (3) The railroad not being a public highway the plant could not, because of proximity to the railroad, be any kind of a nuisance if maintained by consent of the owner of the railroad and therefore the court erred in striking that matter out of the answer. 2 Wood on Nuisances, sec. 806, p. 1187; 29 Cyc. 1259; 21 Am. & Eng. Ency. Law, p. 723. (4) The court erred in admitting the following evidence, viz: (a) Evidence as to the location of defendant's plant with reference to the village schoolhouse, public buildings, etc. And the court also erred in overruling defendant's motion to strike the allegations as to these matters out of the petition. No legal right of plaintiff as to these were violated. Bishop on Non-contract Law, sec. 411; 29 Cyc. 1154; Powell v. Brick & Tile Co., 104 Mo.App. 713; Blackford v. Construction Co., 132 Mo.App. 157. (b) The questions put to Dr. McKenzie and Dr. Craig, were not proper hypothetical questions and put them in the place of the jury. Roscoe v. Met. St. Ry. Co., 202 Mo. 549. (5) Even on plaintiff's own theory, her instruction on the right to recover is erroneous as predicating that right on a finding solely and merely that the explosives were kept "near" the railroad, without any qualification whatever. Certainly, there could be no nuisance unless the explosives were kept so near as to be dangerous to persons on the railroad. Whitfield v. Carrollton, 50 Mo.App. 98; Harper v. Oil Co., 78 Mo.App. 338; Schmidt v. Dist. Co., 90 Mo. 284; Witte v. Stifel, 126 Mo. 295; Beck v. Brewing Co., 167 Mo. 195; Loth v. Theater Co., 197 Mo. 328; 1 Wood on Nuisance, pp. 6-7; 12 Am. & Eng. Ency. Law (2 Ed.), p. 506. And the mere fact that this explosion occurred and injured plaintiff was no evidence that such explosion and result were likely to occur. Beasley v. Transfer Co., 148 Mo. 421.

W. D. Summers, W. L. McSpadden and Ball & Ryland for respondent.

(1) The injuries of respondent having been caused by reason of the maintenance of a public nuisance by appellant, no allegation or proof of negligence was essential to recovery. Scalpinov v. Smith, 154 Mo.App. 524; Schnitzer v. Powder Mfg. Co., 160 S.W. 282; Jewell v. Powder Co., 166 Mo.App. 555; State ex rel. v. Powder Co., 259 Mo. 254. (2) Appellant's objections to hypothetical questions asked Drs. McKenzie and Craig, as to whether respondent's injuries could have resulted from the accident as described in the questions, are not well taken. Taylor v. Railroad, 185 Mo. 239, 256; Railroad v. Railroad, 256 Mo. 208.

BLAIR J. Bond, P. J., is absent.

OPINION

BLAIR, J.

Respondent recovered judgment for damages for injuries suffered when powder stored or in process of manufacture on appellant's premises exploded as a train on which respondent was a passenger was passing appellant's plant. After an effort had been made to prohibit action in the Court of Appeals, the cause was heard there and then transferred here.

The answer admits that "at the times mentioned in the petition, it [appellant] was a corporation and owned and operated a plant for manufacturing powder near Holmes Park in Jackson County, Missouri;" avers it owns the tract upon which its plant is situated and that the tracks of the St. Louis & San Francisco Railway adjoin this tract on the west. The evidence tends to show the village of Holmes Park is located adjoining the north boundary of appellant's property; the village consists of a store, post office, blacksmith shop, school and a number of dwellings, and is a little over a quarter of a mile from the site of the building in which the explosion occurred; the school is nearer than any other part of the village; the village of Hickman's Mill is about one and one-half miles away; the surrounding country is somewhat thickly settled for a farming community, with the usual public roads running through it; two railroad companies used the Frisco tracks which pass the powder plant and operated eight passenger trains and numerous freight trains, daily, over the tracks beside the plant; the explosion occurred in the glaze mill and its force broke windows and doors and wrenched timbers in houses within a radius of more than a mile and a half; threw large iron castings over a quarter of a mile and utterly destroyed the glaze mill, a building fifty by seventy feet in size; the railroad tracks were one hundred to one hundred and fifty yards from the glaze mill at the point at which the train was when the explosion occurred; the glaze mill was used in the final process of manufacturing, and contained eight barrels two and one-half by five feet or more which, in glazing, were half filled with powder and then revolved for the purpose of glazing the contents; when this process was finished the powder was hauled away in tramway trucks in loads of about 600 pounds each. There was also evidence tending to show respondent was injured.

I. "A powder magazine, as to all property and residents in such proximity to it that they are subject to danger from its explosion, is a nuisance regardless of the question as to negligence in the manner of keeping it." [State ex rel. v. Excelsior Powder Mfg. Co., 259 Mo. 254, 169 S.W. 267.]

II. There was substantial evidence tending to show this plant was a nuisance. [State ex rel. v. Powder Mfg. Co., supra, l. c. 278, 279.] That case involved the same plant; and while the evidence is not identical, it is sufficiently so to justify the application of the rule in that case.

III. It is contended the railroad was not a public highway "in such sense that the location of a powder factory close to it could be held to constitute the powder mill a public nuisance." In dealing with this identical contention in another case against this appellant (Schnitzer v. Powder Mfg. Co., 160 S.W. 282), the Kansas City Court of Appeals held plaintiff (in that case) "was as much a user of a public highway as she would have been had she been using the wagon road. So far as the rights of the users are concerned, the character of the use and purpose, not the ownership, of a utility determines whether it should be classed as public...