Moore v. Wabash, St. Louis & Pac. Ry. Co.

• Decision Date: 31 October 1884
• Citation: 84 Mo. 481
• Parties: MOORE v. THE WABASH, ST. LOUIS & PACIFIC RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

84 Mo. 481

MOORE

v.THE WABASH, ST. LOUIS & PACIFIC RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Buchanan Circuit Court.--B. R. VINEYARD, Esq., Special Judge.

AFFIRMED.

W. H. Blodgett and Geo. S. Grover for appellant.

(1) The court erred in refusing to instruct the jury that plaintiff was not entitled to recover. Vanderbeck v. Hendry, 34 N. J. (Law) 472; Sweeney v. Old Colony, etc., 10 Allen 372; Hardcastle v. South Yorkshire, etc., Ry., 4 H. & N. 67; Pierce v. Whitcomb, 48 Vt. 127; McAlpin v. Powell, 70 N. Y. 126; Reulston v. Clark, 3 E. D. Smith 366; Parker v. Portland Pub. Co., 69 Maine 173; Bancroft v. B. & W. R. R., 97 Mass. 275; Forsyth v. B. & A. R. R., 103 Mass. 510; Burns v. B. & L. R. R., 101 Mass. 50; Severy v. Nickerson, 120 Mass. 306. ( a) The teamster was not using the private grounds of appellant by reason of any invitation or inducement on its part, either expressed or implied. At most, there was a mere passive acquiescence in such use. ( b) Even if the teamster was there by any implied invitation or inducement, the accident was not the result of it, but resulted wholly from his own imprudence and folly in abandoning the safe way provided by appellant for his use, and in attempting to travel over ground which he knew to be unfit for the purpose for which he attempted to use it. ( c) The proximate cause of the injury was the negligence of the teamster, and was not the result of any failure on appellant's part to perform any public or private duty. Henry v. St. L., K. C. & N. Ry., 76 Mo. 288. For the reasons given, the first instruction asked by defendant and refused by the court, should have been given. (2) The second instruction given for plaintiff was erroneous, because it assumed the existence of certain facts which were not in evidence, and ignored the evidence in the case. (3) The first instruction given by the court of its own motion was erroneous, because it was without evidence to support it. There was no evidence that the macadamizing on the so-called Monterey street was put in there by the St. Louis, Kansas City and Northern Railway for the use and convenience of those having business with said company.

Doniphan & Reed for respondent

(1) The court committed no error in refusing to give defendant's instruction that plaintiff was not entitled to recover. The theory of plaintiff's case, as shown by his petition, was that defendant had prepared a crossing at a point where its open, public depot grounds touched its track, for the public to go on and off its said grounds, and over its said track, and there was testimony sustaining and tending to sustain this theory, and if this is so, from the admission of opposing counsel, no error was committed in this action of the trial court. (2) A railroad company having a public duty to perform, is bound to make the approaches over its own premises, to its depot, safe and convenient for those transacting business with them. Tobin v. R. R. Co., 59 Me. 187; Thompson on Carriers, 106. (3) A railroad company which holds out an inducement or invitation “ express or implied,” to the public, to enter and leave its depot grounds, by a way, or crossing, or road, by means of which the public are induced to and do pass upon and off from its said depot grounds, is bound to make and keep such way, or crossing, or path, reasonably safe for such travel. Bennett v. R. R. Co., 102 U. S. 577; Sweeney v. Old Colony R. R. Co., 10 Allen 373; Barrett v. Black, 56 Me. 505 and 506; Tobin v. R. R. Co., 59 Me. 188; Carleton v. Franconian Iron and Steel Co., 99 Mass. 216; Caughtry v. Woolen Co., 56 N. Y. 126; Latham v. Roach, 72 Ill. 179; Gillis v. Pa. R. R. Co.,59 Pa. St. 120; Thompson's Car. Pas. 106, 107; Wharton's Law of Neg., secs. 657, 658, 821. The principle we contend for also finds ready recognition in the following cases cited in defendant's brief: 53 Mo. 43; 29 Ohio St. 364; 69 Me. 173. A railroad company, as to the property it owns and uses for the purpose of accomplishing its public, corporate purposes, is subject to restrictions and limitations which do not incumber the private owner of premises. Pitts v. Ft. W. & C. R. W. Co., 29 Ohio St. 369, 370. The public character of a railroad company constitutes a standing public invitation, to all having business with them, to come upon their grounds. And the court will note, that all the cases say an invitation “express or implied” is sufficient. The invitation may be inferred. Nicholson v. Lancashire & C. R. R., 34 L. J. Eq. 84; Indermaur v. Dames, L. R. 1 C. P. 274, 2 C. P. 311; Smith v. London & St. Katharine Docks Co., L. R. 3 C. P. 326; Holmes v. N. E. R. W. Co., L. R. 4 Ex. 254. (4) The question of negligence in this case, under the law and facts, was one for the jury. Where there is conflict of evidence on the question of proximate cause, the case is one for the jury. Henry v. R. R., 76 Mo. 293. (5) The instructions given by the court were proper and are not objectionable on the grounds urged by defendant.

EWING, C.

The plaintiff sued the defendant for damages for killing two mules, and alleged, amongst other things, that defendant's track passed diagonally across Monterey street, in St. Joseph. That the grounds surrounding their depot were open public grounds of defendant, where it transacted its business with the public; that it attempted to macadamize a part of its grounds for the purpose of inducing and enabling the public doing business with it to pass on and off of its grounds and over its track with ease, safety and facility; that it carelessly and negligently left the iron rails of its track protruding several inches above the ground, forming thereby an obstruction to the easy and safe passage of vehicles from said depot grounds; that plaintiff's team was employed in hauling wood from the depot, which had been shipped by defendant and delivered to one Perry; that plaintiff's team with a load of wood was attempting to pass over the grounds and across the defendant's track at the place prepared by defendant for crossing, and became stalled and was run over by defendant's trains and injured, etc. The answer was a general denial and an allegation of negligence on the part of the plaintiff.

A witness on the part of the plaintiff testified that the following plat “showed pretty well the situation at the place spoken of.” That the blue in the plat was macadamizing placed there by defendant; that plaintiff's team was hauling wood from defendant's track at H., where he loaded, and which had been delivered by defendant to one Perry, as consignee, to be delivered to persons in the city to whom it had been sold by Perry. That the main traveled way was on the macadam along the line of the defendant's track to Monterey street, and thence across the bridge track at E. That at the point, I, where the accident occurred, was a place used as a crossing by “'buses and carriages and wagons, which were going from and coming to the defendant's depot and grounds upon business with defendant, such as delivering and transporting passengers to and from defendant's depot and grounds, and delivering and receiving freight to and from defendant; that this crossing, or traveled way had been used similarly for years, with the knowledge of defendant, and without objection. The evidence further tended to prove the allegations of the petition, and some of the witnesses in relation to the alleged crossing, testified as follows: “Teams passed over the vacant grounds and passed over the track where some rock had been thrown in. Some macadamizing had been thrown in there where the team was attempting to cross when hit. It extended out five or six feet from the rail, and was exposed to view. It looked like it had been put down as macadamizing to make a crossing. There is a well defined road crossing the railroad there, and going into defendant's depot, used by teams; it crosses the track north of the depot, and went down west of it, towards the freight depot.” “ This crossing had been used for a long time, ever since he had done business at the depot he had used it, over a year. My wood passed over this crossing for two years;” that parties “passed over the track at that point continually after the mules were hurt.” “ I know...