Morrow v. Hannibal & St. J. R. Co.

• Decision Date: 20 February 1888
• Citation: 29 Mo.App. 432
• Parties: JOHN S. MORROW, Respondent, v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellants.
• Court: Kansas Court of Appeals

29 Mo.App. 432

JOHN S. MORROW, Respondent, v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellants.

Court of Appeals of Missouri, Kansas City.

February 20, 1888

APPEAL from Macon Circuit Court, HON. ANDREW ELLISON, Judge.

Affirmed.

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

STRONG & MOSMAN, for the appellant.

I. All the allegations of the petition, as respects the accumulation of brine upon and near defendant's track, alleged as negligence, causing the injury complained of, are insufficient to constitute a cause of action. Crafton v Railroad, 55 Mo. 580. Defendant is not charged to have had any connection with the act of depositing the attraction upon its own premises, and thus procuring the presence of the animal, and thereby, in effect, undertaking the duty of anticipating the presence of cattle, and of protecting them while there, from harm. The complaint does not aver that defendant knew the fact that the attraction was there, nor does it aver facts which show the duty of ascertaining the fact, nor facts which show opportunity to know the fact. There is no allegation as to the time when such knowledge was acquired, nor of the time the fact existed prior to the accident, nor the length of time during which defendant might reasonably be expected to remove the dangerous attraction. There are no facts alleged showing any duty due from defendant to plaintiff, in respect to the presence of the brine at the place named, nor any facts relating to a disregard of such duty. Schooling v. Railroad, 75 Mo. 520; Lloyd v. Railroad, 49 Mo. 199. Defendant was not bound to fence its depot grounds. Lloyd case supra. The suffering of brine to be on the defendant's premises was not, and could not be the proximate cause of the injury. Gilliland v Railroad, 19 Mo.App. 417-18. The onus is upon plaintiff to make out his case by proof of some negligence which caused the injury. The only allegation which avers negligence which could proximately cause the injury, is in that it charges negligent running of the train. To support that allegation there is no proof offered or given.

II. The court erred in giving the instruction asked by plaintiff. Liability is predicated solely on the finding, " that defendant negligently suffered brine or other substance to accumulate on or near its track, where the cow was killed, and knowingly permitted it to remain there * * * That plaintiff's cow was attracted to that place and killed by reason of such accumulations." It does not submit the issue of negligence in running the train, thus ignoring one of the issues--indeed, the only real issue. Bank v. Westlake, 21 Mo.App. 565. It goes beyond the issues in another direction, viz., it predicates the right to recover upon a finding that defendant " knowingly permitted the brine to remain there." This is not alleged. Melvin v. Railroad, 89 Mo. 106; Storms v. White, 23 Mo.App. 31. There is no evidence from which the jury could find that defendant " knowingly" did so. Bean v. Railroad, 20 Mo.App. 641. The proof proceeded upon the theory that defendant did not know, but was faulty in failing to learn it. The proof was, that others, in such numbers, knew the fact, that defendant ought to have known it. The negligence consisted in the neglect to know it. The instruction did not limit the damages to the amount claimed in the petition. It declares the act of suffering brine to accumulate on the track, negligence per se. Morris v. Railroad, 58 Mo. 78; Swearingen v. Railroad, 64 Mo. 75. It ignores the contributory negligence of plaintiff. Milburn v. Railroad, 86 Mo. 109; Buesching case, 73 Mo. 229. The court erred in refusing to instruct, as prayed by defendant, that, " under the pleadings and evidence, the verdict must be for defendant." Cases cited supra.

III. The court erred in overruling motion for new trial. Cases cited supra.

IV. The court erred in overruling defendant's motion in arrest of judgment for reasons therein stated.

V. The record, consisting of the petition and instructions given and refused, is wholly insufficient to sustain the judgment in plaintiff's favor. Cases cited supra.

B. R. DYSART, for the respondent.

I. There is nothing in this case to distinguish it from the doctrine laid down in Crafton v. Railroad, 55 Mo. 570, and reaffirmed in Schooling v. Railroad, 75 Mo. 518.

II. If the complaint was too indefinite and uncertain, the remedy of defendant was by motion to render more specific. Melvin v. Railroad, 89 Mo. 106.

III. The objection that the court's instruction is broader than the allegations of the complaint, is not well taken. If the complaint states a good cause of action, then the instruction is decidedly favorable to the defendant. The court required the jury to find that defendant " knowingly permitted the same to remain there," etc. But in fact there is no repugnance or variance as between the complaint and the instruction. If the defendant " negligently and carelessly permitted brine and other rubbish to accumulate and collect on its track," the fair presumption, the necessary inference, is that it did so knowingly; and it would have been matter of valid objection, under the complaint, to have allowed the jury to find for plaintiff without defendant's knowledge of such accumulations on the track.

IV. It was agreed at the trial that the appraised value of the cow was thirty dollars, and the verdict was for thirty dollars.

V. The evidence shows that an artificial salt-lick had formed within defendant's switch limits, in a deep cut, near the depot at Callao, by reason of a brine spout emptying there; that it had so remained for about four years; that it attracted and allured cattle; and that many cattle had been struck and killed there. And the evidence tends to show that this cow was attracted there and killed by defendant's cars. The defendant had the right, and it was its duty, to prohibit this use of its grounds by the refrigerator company, and, failing to do so, it is guilty of negligence.

VI. The jury find that these accumulations had the effect of attracting cattle, and causing them to collect there, " and that plaintiff's cow was attracted to that place and killed by reason of such accumulation." And there being evidence to support the verdict, it...