Morie v. St. Louis Transit Company

• Decision Date: 30 January 1906
• Parties: MORIE, Respondent, v. ST. LOUIS TRANSIT COMPANY, Appellant
• Court: Missouri Court of Appeals

91 S.W. 962

116 Mo.App. 12

MORIE, Respondent, v. ST. LOUIS TRANSIT COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

January 30, 1906

Appeal from St. Louis County Circuit Court.--Hon. John W McElhinney, Judge.

REVERSED.

Judgment reversed.

Boyle & Priest, George W. Easley and Glendy B. Arnold for appellant.

That which the Legislature constitutionally authorizes, as the building of a street railroad in a public street, cannot be a nuisance per se. Randle v. Railroad, 65 Mo. 332; Railroad v. Commonwealth, 73 Penn. 38; Glaessner v. Brewing Association, 100 Mo. 514; Tate v Railroad, 64 Mo. 158; Porter v. Railroad, 33 Mo. 128; Lackland v. Railroad, 34 Mo. 259; Gates v. Railway, 111 Mo. 28; People v. Kerr, 27 N.Y. 188.

C. A Schnake and O. J. Mudd for respondent.

The instructions given on behalf of plaintiff correctly declare the law applicable to the case, and, therefore, those refused to the defendant were correctly refused. Keitel v. Railroad, 28 Mo.App. 657; Grieveaud v. Railroad, 33 Mo.App. 458; Powers v. Ins. Co., 91 Mo.App. 55; Elliot on Roads and Streets, sec. 802, p. 871; Id., sec. 811, p. 884; Booth on Street Railways, sec. 58, p. 83; Id., sec. 292, p. 393; Fitts v. Railroad, 59 Wis. 323; Alton H. R. & C. Co. v. Deitz, 50 Ill. 210; Cook v. Railway, 125 Mass. 57; Rockwell v. Railroad, 64 Barb. 448, 83 Tex. 82; Schild v. Railroad, 133 N.Y. 449.

GOODE, J. Bland, P. J., and Nortoni, J., concur.

OPINION

GOODE, J.--

This action was brought to recover the damages sustained by plaintiff from a personal injury for which he says the defendant is answerable. From a judgment in his favor, the defendant appealed. The accident happened near the intersection of Pine and Twelfth streets in St. Louis. The former of those streets runs east and west and the other north and south. The defendant company has two street railway tracks on Pine street. These tracks are parallel; the south one being used by east-bound cars and the north one by those bound west. On Twelfth street there are likewise double tracks, of which the one on the east side of the street is used by north-bound and the one on the west side by south-bound cars. These several tracks are so connected that cars can be diverted from one street to the other, thereby changing the direction of their movement. Cars coming along the east track on Twelfth street from the south, turn from that track into Pine street and proceed eastwardly along the south side of Pine, and cars going westwardly on Pine turn northward at Twelfth. The transfer of cars from one track to another is accomplished by means of a movable switch; or, as the device is sometimes called, a "frog" or a "switch plate." This appliance consists of an iron bar or "tongue," eleven feet long, immovably joined to one of the iron rails of the track at its butt and tapering thence to an edge which moves horizontally over a short arc and from a rail of one track to a rail of another. When a car reaches the end of the tongue, its wheels can be deflected by the tongue around a curve onto a track on the street intersecting the one it was on before. Such appliances are in common use and their shape and operation are familiar to persons accustomed to use street cars. The one which caused the accident to plaintiff lies on Pine street just east of Twelfth, its edge pointing eastwardly on Pine. Plaintiff was hurt in this way: He was riding in a buggy with his brother, who was driving the horse. They came eastwardly along Pine street from Fourteenth street, which runs parallel to Twelfth and two blocks west. The tires of the buggy were about one inch and a half wide, and that was the width of the space between the tongue and the rail immediately north of it. While plaintiff and his brother were driving in a trot, one wheel of their buggy caught in this space and was clamped between the tongue and the rail firmly enough to stop the vehicle suddenly and eject plaintiff from it to the granitoid pavement of the street and hurt him.

The petition first filed counted on negligence.

The case was tried on an amended petition of two counts or paragraphs. The first of these, after describing the arrangement of the car tracks at the crossing of Pine and Twelfth streets, and the shape, construction and operation of the switch, stated the ground of defendant's liability as follows:

"That the tongue or switch was so constructed and arranged as that the wheels of vehicles, such as are in common use in the city of St. Louis, upon being driven along, upon, and over said Pine street at and near the same, were liable, in the ordinary course of travel by such vehicles, to become wedged into the openings or apertures or interstices of said frog or switch plate and the space between the same and the rails of the said track, and to become suddenly caught, seized and firmly held as if in a vice, so as to cause such vehicles to become suddenly and immediately stopped and firmly held. That such machine, so made and constructed, was a nuisance and a danger and menace to persons driving in vehicles upon the street at and near the same. That the plaintiff while riding along said Pine street in an eastwardly direction in an ordinary four-wheel vehicle, at the time belonging to and being driven by plaintiff's brother, and while being driven with ordinary care for the safety of its occupants, and without knowledge or notice to plaintiff or his said brother of the dangerous character of the said machine, drove upon and over the said machine at an ordinary trot and rate of speed; that while so driving, his wheel was suddenly and without warning caught by the said frog or switch plate and so firmly held as to cause the vehicle to immediately and suddenly stop; so that by the force and momentum of plaintiff's body, from the speed and velocity with which he was moving, and the sudden stopping of his vehicle so caught, seized and held by the said frog or switch plate, plaintiff was thrown with great force and violence out of his vehicle and upon the granite and rock-paved surface of the street."

In the second paragraph of the amended petition, the ground of liability stated was negligence.

The several forms in which the case was pleaded bear on the contention of the plaintiff which is earnestly pressed, that the first count of the amended petition states a case of negligence; or may be regarded in that light, if negligence on the part of the defendant must appear for the verdict to stand.

The original petition charged negligence and looked towards proof that the plaintiff's injury was due to a negligent tort. The allegations were that the wheel of the buggy became wedged between the switch plate and the rail, because the switch was negligently constructed and maintained, and that plaintiff's injury was caused by the carelessness of defendant, its agents and servants, in constructing and maintaining it.

In the second count of the amended petition, the ground of recovery stated was negligence in the maintenance of the switch, allowing it to become worn, warped, irregular and uneven, and not oiling it so that the wheel of a vehicle would turn in it. The trial court sustained a demurrer to the evidence offered in support of the second paragraph and submitted the case to the jury on the evidence to prove the first paragraph; thus holding in effect that there was no evidence from which to infer that defendant had been remiss about keeping the switch in good order, or to show plaintiff was injured in consequence of neglect. All the testimony is before us and after an attentive perusal of it, we concur in this conclusion of the learned circuit judge. No witness gave testimony tending to prove the switch was out of repair in any particular, or needed oiling.

The first paragraph of the amended petition says nothing about negligence or want of care, and uses no equivalent expression in laying the basis of recovery. Therefore, it is reasonable to presume that plaintiff alleged whatever negligence he relied on in the second paragraph; the essence of which was that defendant had failed of due care. The essence of the case stated in the first paragraph, is not careless arrangement, construction or maintenance of the switch; but that, as constructed, the machine was dangerous to persons traveling along the street in vehicles, and a nuisance. There is no statement that it was a public nuisance; but if a nuisance at all, considering its location in a much-traveled street of a large city, it must have been a public one, being as likely to injury one person as another. The argument addressed to us is that it was a careless act to put such an appliance in the street, and that as facts are stated sufficient to constitute a case of negligence, it is immaterial that the pleader omitted to characterize the act as negligent. Our opinion is that the inference of negligence from the facts stated is far from irresistible. We state now the proposition which we will argue in the course of this opinion; to-wit; that defendant is not liable absolutely for keeping an appliance in the street which in some measure increased the danger of travel; but only if it kept a wrong appliance (i. e., one unsafe as compared with others in use) or the right one in a wrong condition; and that whether it did either of these things or not depends on circumstances such as the necessity for the switch, the authority under which it was laid, the degree of risk it entailed, the care employed to minimize the risk, and especially to arrange the appliance, if possible, so that it would play over so narrow an arc that wheels would not be caught between it and the rail next to it. The first paragraph of the petition does not count on such facts, or others which would support the ruling that the...