Lowenstein v. The Missouri Pacific Railway Company

• Citation: 119 S.W. 430,134 Mo.App. 24
• Parties: CARL LOWENSTEIN, Respondent, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant
• Decision Date: 07 December 1908
• Court: Kansas Court of Appeals

119 S.W. 430

134 Mo.App. 24

CARL LOWENSTEIN, Respondent, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

December 7, 1908

Rehearing Denied 134 Mo.App. 24 at 33.

Appeal from Jasper Circuit Court.--Hon. Hugh Dabbs, Judge.

AFFIRMED.

Judgment affirmed.

Martin L. Clardy and Edw. J. White for appellant.

(1) The court erred in overruling the motion to compel plaintiff to elect on which cause of action set up in the petition he would go to trial. R. S. 1899, secs. 1103, 9554; Clancy v. Transit Co., 192 Mo. 640; McHugh v Railroad, 190 Mo. 85; Behen v. Railroad, 186 Mo. 430. (2) The court erred in overruling the defendant's motion to strike out parts of the plaintiff's petition. Lowenstein v. Railroad, 110 Mo.App. 689. (3) The court erred in admitting improper and illegal evidence on the part of the plaintiff, over the defendant's objections and exceptions. Strohm v Railroad, 96 N.Y. 305; Ford v. Kansas City, 181 Mo. 143; Seckinger v. Manufacturing Co., 129 Mo. 590; Dickson v. Hollister, 123 Pa. 521. Goss v. Railroad, 50 Mo.App. 614; Telephone Co. v. Bennett (N.J.), 5 Am. Neg. Rep. 657; Roche v. Railroad, 105 N.Y. 294, 11 N.E. 630; Kennedy v. Railroad, 130 N.Y. 654, 29 N.E. 141; Winter v. Railroad, 74 Iowa 448, 38 N.W. 154; Leahy v. Railroad, 97 Mo. 165; Taylor v. Railroad, 48 N.H. 304. Lowenstein v. Railroad, 110 Mo.App. 689; Nash v. Dowling, 93 Mo.App. 164; Madden v. Railroad, 50 Mo.App. 666; Gutridge v. Railroad, 94 Mo. 468; Haviland v. Railroad, 172 Mo. 115; Traber v. Hicks, 131 Mo. 186; 1 Enc. Pl. and Pr., pp. 585, 586; Chitty v. Railroad, 148 Mo. 64; Mann v. Railroad, 86 Mo. 347; Traux v. Railroad, 83 Wis. 547, 53 N.W. 842; 3 Elliott on Railroad, secs. 1146, 1151. (4) The court erred in refusing the demurrer, asked at the close of the plaintiff's case and again at the close of the whole case. 3 Elliott on Railroad, secs. 1146, 1151; Mann v. Railroad, 86 Mo. 347; Straub v. Soderer, 53 Mo. 38; Parney v. Railroad, 126 Mo. 389; Wenecker v. Railroad, 169 Mo. 599; Carr v. Railroad, 195 Mo. 225; Gunderman v. Railroad, 58 Mo.App. 370; Glaser v. Rothschild, 106 Mo.App. 418; Graemlich v. Railroad, 9 Phila. (Pa.) 78; Railroad v. Stamps, 26 Ill.App. 219; Ferguson v. Railroad, 13 Nev. 184; Donnelly v. Railroad (Mass.), 42 Am. & Eng. R. Cas. 182; Wright v. Railroad (Mass.), 28 Am. & Eng. R. Cas. 652; Cusick v. Adams (N.Y.), 21 N.E. 673; Williams v. Nashville (Tenn.), 63 S.W. 231; Lochat v. Lutz (Ky.), 22 S.W. 218; Bennett v. Butterfield, 70 N.W. 410; Blackstone v. Co. (Mass. ), 49 N.E. 635; Beehler v. Daniels & Co., 27 L.R.A. 512; Redigan v. Railroad (Mass.), 28 N.E. 1134, 14 L.R.A. 276; Reardon v. Thompson, 149 Mass. 267; Manning v. Railroad, 16 L.R.A. 271; De La Pena v. Railroad (Tex.), 74 S.W. 58; Muench v. Heineman (Wis.), 96 N.W. 800; Bentley v. Loverock, 102 Ill.App. 166; Sterger v. Van Sticklen, 132 N.Y. 499; Bensen v. Baltimore Tr. Co., 77 Md. 535; Sweeney v. Railroad, 10 Allen 368; Traux v. Railroad, 83 Wis. 547, 53 N.W. 842. (5) The undisputed evidence showed that plaintiff was guilty of contributory negligence, in drawing onto a private crossing he knew had been repaired by putting soft gravel in between the rails while sitting astride a bale of hay, on a load five bales high, and driving onto the crossing of the railroad track, with his wagon on an angle, leaning over and watching the wheels, instead of his team. Meyers v. Railroad, 103 Mo.App. 268; Madison v. Railroad, 60 Mo.App. 599; Nixon v. Railroad, 141 Mo. 426, 438; Shonhoff v. Railroad, 97 Mo. 152. (6) The court erred in giving improper instructions to the jury, at the instance of the plaintiff. Mammerberg v. Railroad, 62 Mo.App. 563; Stoetzle v. Swerigen, 96 Mo.App. 592; Brake v. Kansas City, 100 Mo.App. 611; Haworth v. Railroad, 94 Mo.App. 216; Dunn v. Railroad, 21 Mo.App. 188; Morrison v. Yancey, 23 Mo.App. 670; O'Brien v. Loomis, 43 Mo.App. 29; Watson, Dam. Per. Inj., sec. 486; Wallace v. Tr. Co., 123 App. 161. (7) The court erred in refusing proper instructions asked by the defendant. Mammerberg v. Railroad, 62 Mo.App. 563; O'Brien v. Loomis, 43 Mo.App. 29; Mann v. Railroad, 86 Mo. 347; Straub v. Soderer, 53 Mo. 38; Wenecker v. Railroad, 169 Mo. 592; Carr v. Railroad, 195 Mo. 214; Gunderman v. Railroad, 58 Mo.App. 370; Glaser v. Rothschild, 106 Mo.App. 418. (8) The court erred in permitting the petition to be amended, at the close of the whole case, to conform the pleading to proof that was incompetent, when offered and which was objected to. 1 Enc. Pl. and Pr., pp. 585, 586; Beard v. Tilghman, 66 Hun 12; Wheaton v. Voorhis, 53 How. Pr. 319; Southwick v. Bank, 84 N.Y. 420; Cunningham v. Hobart, 7 Gray (Mass.) 423; Seymour v. Fisher, 16 Colo. 188; Railroad v. Bunnell, 61 Ind. 183; Wilson v. Russler, 91 Mo.App. 275; Brooks v. Blackwell, 76 Mo. 274; Chitty v. Railroad, 148 Mo. 64. (9) The court erred in refusing the defendant a continuance, after the amendment at the close of the whole case and the discharge of the witnesses, upon the affidavit of surprise filed by its counsel. Scovill v. Glasner, 79 Mo. 449; Maloney v. Building Assn., 57 Mo.App. 384; Sims v. Field, 24 Mo.App. 557; Phillipps v. Broughton, 30 Mo.App. 148; Heman v. Glann, 129 Mo. 325; Clark v. Railroad, 127 Mo. 255; Purdy v. Pfaff, 104 Mo.App. 331; Pruett v. Warren, 71 Mo.App. 84; R. S. 1899, sec. 798.

Perkins & Blair for respondent.

Appellants first and second assignments of error are without merit. Tetherow v. Railroad, 98 Mo. 84. (3) It was not error for the court to permit plaintiff to exhibit his crippled physical condition to the jury. Tetherow v. Railroad, 98 Mo. 84. (4) Under this state of facts the plaintiff was "engaged with the consent of the company in a transaction of common interest to both" and defendant owed plaintiff the duty of maintaining its grounds and crossings in a reasonably safe condition. Moore v. Railroad, 84 Mo. 487; Carleton v. Iron Co., 99 Mass. 216; Sweeney v. Old Colony Rd., 10 Allen (Mass.) 368; Railroad v. Hanning, 15 Wall. (U.S.) 649; Bennett v. Railroad, 102 U.S. 577; Swords v. Edgar, 59 N.Y. 28; Welch v. McAllister, 15 Mo.App. 497; O'Donnell v. Patton, 117 Mo. 18; Eisenburg v. Railroad, 33 Mo.App. 85; Wheeler v. Railroad, 66 Mo.App. 260; Sherm. & Redf., Negl. (5 Ed.), par. 704; Holmes v. Railroad, L. R. Ex. 259; Nave v. Fleck, 46 Am. Rep. 207; Thompson Negligence (2 Ed.), pars. 1012, 1013, and numerous cases cited; Campbell v. Boyd (N. C.), 43 Am. Rep. 740; Graves v. Thomas (Ind.), 48 Am. Rep. 727; 1 Thompson, Negligence (2 Ed.), pars. 978, 979; Wendell v. Baxter, 78 Mass. 494. This rule applies to draymen. Railroad v. Ives, 12 Ind.App. ___; Kenney v. Railroad, 105 Mo. 285; Huhn v. Railroad, 92 Mo. 440; Mauerman v. Siemerts, 71 Mo. 101; Lowenstein v. Railroad, 110 Mo.App. 636; Lowenstein v. Railroad, 117 Mo.App. 371. (5) The amendment was not material, nor was it necessary; but it certainly was permissible. R. S. 1899, secs. 656, 657; Carr v. Moss, 87 Mo. 447.

OPINION

ELLISON J.

This action is for personal injury received by plaintiff. He recovered in the trial court. The case was here on two former appeals. [110 Mo.App. 686, and 117 Mo.App. 371.]

The defendant maintains a private crossing over its track near its depot in the village of Jasper through which its road runs. The crossing is maintained as a means of access to defendant's depot grounds by persons having business connected with its occupation as a transportation corporation. There is a hay barn and an elevator on its right of way near the depot, owned and operated by a private party. This person buys hay and grain which is delivered to the barn for the purpose of shipment over its road. It was not shown, in terms, by what arrangement with the owner the defendant permitted the barn and elevator to be built and maintained on its right of way. But the fact was shown that these structures are permitted to be there and that hay and grain is bought and delivered to the warehouse and thence shipped out over the road.

The crossing is so situated that the approach thereto is not so that the wheels of a vehicle would strike it squarely, but at an angle, one wheel at a time. Plaintiff's hay was baled and had been sold to the warehouse and on the day of his injury he had hauled a load to the warehouse over the crossing in question. He then went back to his farm for another load. While gone, defendant's servants dug the solid dirt out of the crossing to a depth of twelve or fifteen inches, down to the lower side of the ties, and filled in with loose gravel. After this reconstruction plaintiff returned with his second load and was sitting on the top of the highest bale. In attempting to drive over the crossing the front wheel or wheels of the wagon on passing over the iron rail of the track immediately dropped or sank into the loose gravel to a depth of about twelve inches, the effect of which was to throw plaintiff from his seat to the ground, whereby he was severely and permanently injured.

The foregoing, while not complete in detail, is a statement of what the evidence in plaintiff's behalf, in substance, tended to prove.

It is defendant's contention that it did not owe any duty to plaintiff. That plaintiff did not bear such relation to defendant that would create a duty to him with reference to the crossing. The amended petition alleges that plaintiff was hauling to "the hay barn of J. P. Leiss to be loaded on the defendant's cars by said Leiss and transported by said Leiss over the defendant's railroad." The evidence tended to show that the hay so delivered by plaintiff was shipped out over defendant's road. It is the law, as contended by defendant, that the duty to one having business relations with a carrier at its depot is greater than to one who goes upon the...