Morris v. St. Louis & San Francisco Railroad Co.

• Decision Date: 20 June 1914
• Citation: 168 S.W. 323,184 Mo.App. 106
• Parties: T. J. MORRIS, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant
• Court: Missouri Court of Appeals

168 S.W. 323

184 Mo.App. 106

T. J. MORRIS, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

June 20, 1914

Appeal from Dunklin Circuit Court.--Hon. W. S. C. Walker, Judge.

AFFIRMED.

Judgment affirmed.

W. F Evans, W. J. Orr and J. H. Orr for appellant.

(1) The court should have directed a verdict for the appellant on the plaintiff's own testimony. Ryan v. Kansas City, 134 S.W. 566; Border v. Sedalia, 144 S.W. 161; Coffey v. Carthage, 85 S.W. 532; Wheat v. St Louis, 78 S.W. 792; Kaizer v. St. Louis, 84 S.W. 19; Woodson v. Railroad, 123 S.W. 820; Diamond v. Kansas City, 90 S.W. 492. (2) The court erred in giving instruction number 1 for respondent because it is misleading, argumentative and submits questions not shown by the evidence. In effect it tells the jury defendant is liable. These propositions are too elementary to call for citations. (3) Instruction number 2 does not correctly define the appellant's duty in cases of this kind. Appellant's duty was a question of law which should have been defined. What an ordinary prudent person would or would not have done does not relieve appellant of its legal duty nor impose a greater one. (4) Instruction number 3 is in direct conflict with all others given and does not correctly state the law on the facts here. (5) Instruction number 4 furnishes the jury no guide except their own judgment as to the damages and does not require their verdict to be based on the evidence. It also tells the jury that respondent was injured through appellant's negligence. Spohn v Red, 116 Mo. 617; Schwend v. Red, 80 S.W. 4. (6) Instruction number 5 is not correct because it ignores every element testified to by respondent which tends to convict him of contributory negligence and is not based on the undisputed evidence on this branch of the case. See authorities under first point.

Abington & Phillips for respondent.

(1) The railroad company built its road bed across Fifth street, and changed the existing surface of the street, and hence, it became its duty to erect and maintain in a reasonably safe condition, such structures as were necessary to restore, as nearly as possible, the highway to its original condition, and it is liable for injuries resulting from its breach of duty. City of Independence v. Railroad, 86 Mo.App. 589; Kyne v. Railroad, 8 Houst. 185; Railroad v. Allen, 34 Ind.App. 636; Railroad v. Com., 80 Ky. 147; Railroad v. Harrodsburg, 32 S.W. 604; Railroad v. State, 23 Fla. 546; Railroad v. Johnson, Tex. Civ. App. 322; People v. Railroad, 67 Ill. 118; State v. Railroad, 80 Minn. 108; State v. Railroad, 86 Mo. 13. (2) The defendant was guilty of negligence in constructing the approach to its trestle so that its western edge lacked nineteen inches of coming to the west line of Fifth street. Gibbs v. Monett, 145 S.W. 841; Walker v. Kansas City, 99 Mo. 647; Powers v. Penn. Mutual Ins. Co., 91 Mo.App. 55. (3) Plaintiff was not guilty of contributory negligence in using the sidewalk at the time of his injury. Gibbs v. Monett, 145 S.W. 841. (4) Plaintiff's instruction number one followed the allegations of the petition as is required in negligence instructions under the decisions in this State, and hence, the court committed no error in giving the same to the jury. (5) Plaintiff's instruction number two is correct and accurate. It defines negligence under the circumstances of this case. Wilkins v. Railroad, 101 Mo. 93. (6) Plaintiff's instruction number three was correct and the court committed no error in giving the same to the jury. Powe v. Kansas City, 100 Mo. 190; Goins v. Moberly, 127 Mo. 116; Kassman v. St. Louis, 153 Mo. 293; Powers v. Insurance Co., 91 Mo.App. 55; Fockler v. Kansas City, 94 Mo.App. 464; Gibbs v. Monett, 145 S.W. 841. (7) Plaintiff's instruction number four correctly defined the measure of damages and the court committed no error in giving the said instruction to the jury, and if defendant did not consider it specific enough it was its duty to offer one more specific. Boettger v. Iron Company, 124 Mo. 87. (8) Plaintiff's instruction number five correctly declared the law on the subject of plaintiff's knowledge of the defect of the walk, if he had such knowledge. See authorities cited under point 3. (9) The judgment is for the right party and should be affirmed. Fritz v. Railroad, 148 S.W. 75; Nagel v. United Ry. Co., 152 S.W. 621. (10) Judgment for plaintiff should be affirmed for it is apparent that if the cause was remanded for a new trial that said trial would result again in a verdict for the plaintiff. Where it is obvious to the appellate court that a retrial of the case in the lower court would result in a verdict and judgment for the same party, then such appellate courts decline to go through the idle performance of reversing and remanding the case for trial. 3 Cyc. 420; Blanchard v. Engine Works, 142 Mo.App. 319; Hesse v. L., H. & P. Co. , 144 Mo.App. 549; Smith v. Railroad, 122 Mo.App. 85; McDermott v. Doyle, 11 Mo. 443; Nagel v. United Ry. Co., 152 S.W. 621; Tate v. Barcraft, 1 Mo. 163; Daniel v. Atkins, 66 Mo.App. 342; Baker v. Shaw, 30 Mo.App. 611.

NORTONI, J. Reynolds, P. J., and Allen, J., concur.

OPINION

NORTONI, J.

This is a suit for damages accrued to plaintiff on account of personal injuries received through the alleged negligence of defendant. Plaintiff recovered and defendant prosecutes the appeal.

Plaintiff received his injury through stepping into a hole in defendant's sidewalk adjacent to its tracks at the point of a street crossing for pedestrians. Defendant owns and maintains its railroad across Fifth street, a public thoroughfare in the city of Poplar Bluff. It is said the railroad embankment is about two feet above the surface of the street at the place at which it crosses Fifth street. Fifth street is a public thoroughfare in the city of Poplar Bluff and runs north and south. A public sidewalk is maintained along the west side of Fifth street for the use of pedestrians. Immediately adjacent to the railroad track, on the north side of it, there is a depression or drain, and defendant constructed a sidewalk from its railroad track across this drain, to connect with the sidewalk in front of Holcomb's property immediately north. Under this walk so constructed by defendant, passes the ditch or drain into which plaintiff was precipitated on stepping off of the walk.

The portion of the walk across such drain which defendant constructed and maintains is about seven feet in width from east to west and probably ten feet long from north to south. The east side of defendant's walk is flush with the east side of the walk in other portions of the street, but on the west side of defendant's walk it lacks nineteen inches from abutting the building line, that is, the west side of the street. Defendant's walk is constructed of heavy planks laid lengthwise from north to south, the south ends of which are made fast to a beam affixed to the ties under its railroad tracks, while the north end of such planks lying lengthwise are made fast to the sidewalk in front of Holcomb's property. Defendant's sidewalk seems to be well enough, save a space nineteen inches wide on the west side of it, adjacent to the building line, which is open and unprotected. Into this space, nineteen inches wide, plaintiff stepped and received his injuries through being precipitated to the bottom of the drain below, because of defendant's failure to in anywise inclose or guard it.

It appears plaintiff was familiar with the walk and its construction as he passed over it every day of the week, and, indeed, he says he had stepped into the identical place the summer before. Defendant was fully aware of the condition of its walk, for besides constructing it in a manner so as to leave a space of nineteen inches uncovered on the west side and adjacent to the building line, the opening therein had continued to thus exist for more than a year before plaintiff was injured. It appears, too, the east side of this portion of the walk was some inches higher than the west side--that is to say, it sloped several inches to the westward where the nineteen-inch space immediately above the drain and adjacent to the building line was uncovered. Moreover, the south end of this walk, constructed by defendant across the ditch to connect with the crossing on its railroad, was about a foot higher than the north end, which connected with the walk in front of Holcomb's building. Plaintiff was en route from his home to a grocery store about nine o'clock at night and under cover of darkness, when he stepped into the hole in the walk and was precipitated to the bottom of the drain beneath with such force as to fracture his left collar bone and inflict other slight injuries upon him.

His evidence tends to prove that, though he knew the condition of the walk, he stepped into the opening because he was unable to discover its location therein for the reason that darkness prevailed. Plaintiff says he exercised caution in approaching and endeavoring to pass it, but as there were no guardrails or signals or anything to indicate the precise location of the uncovered portion, he stepped off of the end of the walk in front of Holcomb's and into the ditch.

Because plaintiff says he knew of the condition of the walk and had fallen into the same hole during the summer before, it is earnestly...