Morrison v. Kansas City, St. J. & C. B. R. Co.

• Decision Date: 24 October 1887
• Citation: 27 Mo.App. 418
• Parties: OSCAR MORRISON, Respondent, v. KANSAS CITY, ST. JOSEPH & COUNCIL BLUFFS RAILROAD COMPANY, Appellant.
• Court: Kansas Court of Appeals

27 Mo.App. 418

OSCAR MORRISON, Respondent, v. KANSAS CITY, ST. JOSEPH & COUNCIL BLUFFS RAILROAD COMPANY, Appellant.

Court of Appeals of Missouri, Kansas City.

October 24, 1887

APPEAL from Jackson Circuit Court, HON. TURNER A. GILL, Judge.

Affirmed.

The case and facts are stated in the opinion of the court.

STRONG & MOSMAN, for the appellant.

I. The court erred in striking the plea of contributory negligence out of the answer. The defendant's liability was for " double the amount of all damages occasioned by its failure; " not for double the amount of all damages occasioned by combined negligence of plaintiff and defendant. Section 809, Revised Statutes; Curry v. Railroad, 43 Wis. 665; Field v. Railroad, 8 Am. & Eng. Ry. Cases 425; S. C. 14 F. 332; Milburn v. Railroad, 86 Mo 104; Pitzner v. Schenmek, 39 Wis. 129; Jackson v. Railroad, 25 Vt. 150; Munger v. Railroad, 4 N.Y. 349; McCandless v. Railroad, 45 Wis. 365; Lawrence v. Railroad, 42 Wis. 322; Hance v Railroad, 26 N.Y. 428; Railroad v. Irish, 72 Ill. 405; Railroad v. Adams, 43 Ind. 402; Railroad v. Candle, 60 Ind. 112; Railroad v. Huber, 42 Ind. 173; Railroad v. Wendt, 12 Neb. 80; Railroad v. Landes, 24 Kan. 406; Railroad v. Mc Henry, 24 Kan. 501; Jones v. Railroad, 42 Wis. 306; Whittier v Railroad, 24 Minn. 394.

II. Defendant's objection to any evidence being given under the petition should have been sustained. Under the statute it was not the duty of the defendant to maintain the gate. Scott v. Reed, 10 Pet. 524; Brewer v. Blougher, 14 Pet. 178; Murray v. Railroad, 43 N.Y. 274; Story's Conflict of Laws, 17; Rex v. Inhabitants of Bently, 10 B. & C. 527. Words cannot be imported into a statute. King v. Burrell, 12 Ad. & E. 468; Everell v. Mills, 4 Scott (N. C.) 531; Lamond v. Effice, 3 Q. B. 910; Jackson v. Lewis, 17 Johns. 475; People v. Railroad, 13 N.Y. 78. Penal statutes are never extended by implication. Andrews v. United States, 2 Story 203; Stinson v. Pond, 2 Curt. 502; Parish v. Railroad, 64 Mo. 284; United States v. Ten Sharols, 2 Paines [C. C.] 166. Statutes in derogation of the rights of property must be strictly construed. Van Horne v. Dormance, 3 Vali 316. So?? too, when in derogation of the common law. Brown v. Barry, 3 Dall. 367; Dwelly v. Dwelly, 46 Me. 377; Burnside v. Whitney, 21 N.Y. 148.

III. Because the statute did not make defendant liable in double the amount of all damages done to stock which came upon the road through gates which are open in consequence of defendant's failure to maintain them an injury to such stock cannot be sad to be occasioned by the failure to maintain such fences and cattle-guard. See sect. 809, Rev. Stat., 1879; Paler v. Railroad, 16 N.Y. 476; Murray v. Railroad, 43 N.Y. [4 Keys] 274; Barnett v. Railroad, 60 Mo. 56; Curry v. Railroad, 43 Wis. 665; Parrish v. Railroad, 63 Mo. 284.

IV. Defendant's demurrer to the case made by plaintiff's evidence should have been sustained. (1) Because the statute did not impose on the defendant the duty of keeping the gate closed. (2) Because the statute does not authorize an action to recover double the amount of the damage done to stock which come upon the track through gates carelessly left open by the defendant. It was as much the duty of plaintiff as of defendant to see that the gates were closed. Railroad v. McKee, 43 Ill. 119; Railroad v. Dickerson, 27 Ill. 55; Paler v. Railroad, 16 N.Y. 476; Railroad v. Huber, 42 Ind. 173; Enright v. Railroad, 33 Cal. 230; Railroad v. Williamson, 2 West. Rep. 223; Ind. & Cum. R. R. Co., 23 Ind. 340; Railroad v. Shriner, 17 Ind. 265; Eames v. Boston, 14 Allen [Mass.] 151. (3) Said demurrer should have been sustained because there was no evidence that the killing was done by defendant's engines or cars. An actual collision with defendant's engine was necessary to sustain such action. Seibert v. Railroad, 72 Mo. 565; Railroad v. Packwood, 7 Am. & Eng. Ry. Cases, 584; Railroad v. McMillen, 37 Ohio St. 554; Young v. Wilson, 24 Miss. 694; Railroad v. Talbott, 78 Ky. 621. Verdict must be founded on something more than mere theory and supposition. Fitterling v. Railroad, 79 Mo. 504; Callahan v. Warne, 40 Mo. 131; Wood v. Railroad, 51 Wis. 201. No inference of factor law is reliably drawn from premises so uncertain. United States v. Ross, 92 U.S. 283; McAleer v. Murray, 58 Pa. 126; United States v. Corcoran, 2 Peters [U. S.] 132; Laurance v. Railroad, 42 Wis. 329; Cordell v. Railroad, 75 N.Y. 330; Branagan v. Railroad, 75 Ind. 490; Smith v. Railroad, 37 Mo. 287. (4) Because there was no evidence to show that the defect in the gate had any agency in causing the gate to be open on this occasion. Laney v. Railroad, 83 Mo. 466; Fitterling v. Railroad, 79 Mo. 504; Bothwell v. Railroad, 59 Iowa 192; Johnson v. Railroad, 55 Iowa 707; Clardy v. Railroad, 73 Mo. 576; Harrington v. Railroad, 71 Mo. 384. And the evidence did show that the gate was left open by strangers. Ridenour v. Railroad, 81 Mo. 227; Harrington v. Railroad, 71 Mo. 384; Case v. Railroad, 75 Mo. 668. (5) Because there was no evidence tending to show that defendant could have ascertained the fact that the gate was open, and had time to close it before the horses went through. Ridenour case, supra; Laney case, supra; Harrington case, supra; Railroad v. McGee, 60 Ill. 530; Railroad v. Swearingen, 47 Ill. 206; Aylesworth v. Railroad, 30 Ia. 459; Perry v. Railroad, 36 Ia. 102; Eames v. Railroad, 14 Allen 153.

V. Plaintiff's first instruction should not have been given, because: (1) It was so vague, general, and indefinite, that instead of being a guide to the jury in their deliberations it confused them, and beclouded the real questions of fact in the case. (2) It was an incomplete statement of facts which, for the most part, were wholly irrelevant. (3) It predicated a recovery on the co-existence of two separate, distinct, and independent facts, regardless of whether they, or either of them, had any agency in producing the injury. (4) There was no evidence tending to show that the injury was due to the combination of these two causes. (5) Said instruction was erroneous in that it did not require the jury to find that the gate, on this occasion, was caused to be open by reason of its " being out of repair." (6) It was erroneous in that it did not require the jury to find that the gate was open through the defendant's neglect on that occasion, or that defendant was guilty of negligence in respect to keeping it in repair.

VI. (1) It was error to refuse defendant's second and sixth instructions. Harrington v. Railroad, 71 Mo. 384; Binicker v. Railroad, 83 Mo. 660. (2) It was error to refuse defendant's third instruction. Railroad v. McKee, 43 Ill. 119; Railroad v. Dickerson, 27 Ill. 55; Paled v. Railroad, 16 N.Y. 476; Railroad v. Huber, 42 Ind. 173; Enright v. Railroad, 33 Cal. 230; Wabash v. Railroad, 2 West. Rep. 23; Railroad v. Schriener, 17 Ind. 265; Eames v. Railroad, 14 Allen 151. (3) It was error to refuse defendant's fourth instruction. Strangers had no right to pass through plaintiff's premises in order to cross the railroad, and if plaintiff permitted them to do so he became responsible for their carelessness. At any rate he could not recover if his licensee carelessly left the gate open. (4) Defendant's fifth, sixth and seventh instructions were the law, and should have been given. Enright v. Railroad, 33 Cal. 230; Railroad v. Seerer, 60 Ill. 295; Roler v. Railroad, 16 N.Y. 476; Case v. Railroad, 75 Mo. 668; Ridenour v. Railroad, 81 Mo. 227; Binicker v. Railroad, 83 Mo. 660; Laney v. Railroad, 83 Mo. 446; Fitterling v. Railroad, 79 Mo. 504.

VII. For the reasons aforesaid, it was error to overrule defendant's motion for a new trial.

VIII. The court erred in doubling the damages found by the jury. The horse went in through a gate left open by strangers. Even had defendant been guilty of knowingly failing to close the gate, the plaintiff could not recover double damages for an injury occasioned thereby. See cases cited in support of defendant's objection to any evidence under the petition.

IX. The court erred in overruling the defendant's motion in arrest of judgment, for the reasons given in support of our objection to any evidence under the petition, and those given in support of the demurrer to the evidence. See cases cited in support of those points in paragraph I.

C. W. FREEMAN, for the respondent.

I. Plaintiff claims, and sets up in his petition, " that on November 7, 1883, and for several months prior to that date, a gate in said fence (being the gate through which said horse went upon defendant's roadbed), was, and had been negligently and carelessly left out of repair and open by the defendant; that, on account of said gate being negligently left open and out of repair, said horse of plaintiff went upon the roadbed of defendant, and was run against and killed, as above set out."

II. The evidence in this case shows that the gate in question had been out of repair for three months prior to the happening of the matter complained of; that the post to which the gate had been hung had rotted entirely off, and depended upon the fence wire attached to it for support; that there were no fastenings to the gate of any kind; that the gate had to be lifted and dragged in order to open and shut it; that this condition of the gate was or could have been known to the section foreman, Casey, by the use of reasonable diligence for a long time prior to the accident, as he passed same several times every day, and that he made no attempt to repair it; that on account of this condition of the gate the plaintiff had for some time been tieing up his horses in his stable, but that on the night of the accident they got loose and went upon the track of defendant, through this gate, and one of them was killed. The...