Mann v. Chicago, Rock Island & Pacific Ry. Co.

• Decision Date: 30 April 1885
• Citation: 86 Mo. 347
• Parties: MANN v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

86 Mo. 347

MANN

v.THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

April Term, 1885.

Appeal from Daviess Circuit Court.--HON. S. A. RICHARDSON, Judge.

REVERSED.

This was an action to recover damages for injuries sustained by plaintiff's wagon by reason of a collision with one of defendant's trains at a private crossing located on the land of another. It was averred in the petition that prior to the eighteenth day of September, 1877, the defendant “undertook and agreed to construct and maintain a crossing for the use of the public as a highway” at the point in question; that in constructing said crossing it became necessary to construct a small bridge to span a ditch which ran along the railroad; that at said point defendant constructed two gates in the fence, on each side of its right of way, “in order that travelers might pass through thereat;” that after said crossing and gates were constructed, the traveling public, being informed of the provisions made for the public travel through said gates and over said crossing, “began to pass through said gates and over said crossing and have ever since continued so to do, by the consent and invitation of the defendant;” that on the eighteenth day of September, 1877, plaintiff attempted to drive a loaded wagon across said bridge, when, “by reason of its insufficient and rotten condition, negligently constructed and maintained by defendant,” it gave way and let his wagon into the ditch, whereby it became fastened upon the crossing, and that while it was so fastened, one of defendant's trains negligently and carelessly ran against and destroyed said wagon.

Among other things, the defendant answered, that “the plaintiff had no right to drive his said team over said crossing; that, at the time and place mentioned, plaintiff, without leave or authority, was attempting to drive his horses with said wagon across the right of way and track of this defendant, and that said horses were then and there so carelessly, negligently and improperly managed by plaintiff, that the accident and damage to plaintiff, if any, was caused solely by such careless, negligent and improper management and driving of said horses, and not by the fault or neglect of defendant.”

On the trial the plaintiff introduced evidence tending to show that the bridge was defective, and that he “knew its condition before the accident;” that his son attempted to drive across the bridge with a load of wood, and that...