Phillips v. Pryor

• Decision Date: 27 November 1916
• Docket Number: No. 12160.,12160.
• Citation: 190 S.W. 1027
• Parties: PHILLIPS v. PRYOR et al.
• Court: Missouri Court of Appeals

190 S.W. 1027

PHILLIPS v. PRYOR et al.

No. 12160.

Kansas City Court of Appeals. Missouri.

November 27, 1916.

Rehearing Denied December 29, 1916.

Appeal from Circuit Court, Randolph County; A. H. Waller, Judge.

"Not to be officially published."

Suit by Earl Phillips, a minor, by J. D. Nichols, next friend, against Edward B. Pryor and Edward F. Kearney, receivers of the Wabash Railroad Company. From a judgment for plaintiff, defendants appeal. Judgment affirmed.

J. L. Minnis and N. S. Brown, both of St. Louis, and Phillips & Phillips, of Moberly, for appellants. E. O. Doyle, of Moberly, for respondent.

TRIMBLE, J.

This is a suit for personal injuries. The plaintiff, a boy of 15, was driving a grocer's one-horse delivery wagon over a railroad crossing. An engine standing down the track a short distance away began letting off steam. The horse, as it went over the crossing, shied to the left to such an extent that the left wheels missed the ends of the crossing boards and went about 2 feet to the left of said ends. The jolting, caused by the wheels passing over the unprotected ties and rails, threw the boy out and broke his leg in such way that it had to be amputated. Upon the boy falling out, the horse wheeled to the right and ran for about a block and stopped.

Plaintiff averred that the crossing was on a public street and in the city of Moberly, and that under section 10626, R. S. Mo. 1909, it was defendant's duty to construct and maintain crossing planks 24 feet in length on each side of the rails, but that the crossing was only 16 feet in width. Said section expressly makes a railroad liable for all damages resulting from a neglect to construct the crossing required.

As submitted, his case was bottomed on the theory that the defendants' crossing planks were not of the required length, that the failure to have them of the proper length was the cause of his injury, and that had it not been for such failure to obey the statute, his injury would not have happened.

Defendants' answer was a general denial and a plea of contributory negligence. The jury returned a verdict of $5,000. A new trial being refused, defendants appealed.

One of the points made by the defendants is that the crossing is not one which the statute requires to be 24 feet in width, their contention being that the crossing is not in the city limits. We think this contention is untenable. The city of Moberly was incorporated by an act of the General Assembly, March 3, 1873 (Laws 1873, p. 322). At and long prior to that time, Emerson street was one of the platted streets of the town. It was two blocks inside the west edge of the platted territory and ran from Van Horn street north nine blocks to the right of way of the west branch of the railroad, intersecting at right angles as it went, some eight or more streets in said town. (At Moberly the railroad had and now has two branches, one the west branch going west to Kansas City, and the other the north branch going to Des Moines.) As incorporated, the city included not only the platted territory south of the west branch of said railroad, but also the unplatted ground lying north of said west branch. In 1889, the city, in consideration of the railroad erecting a depot, reduced its city limits by "excluding therefrom all the grounds owned by the Wabash Western Railway between the west branch main line track of its road and the north branch main line track." About six or seven years ago, the owners (individuals) of that portion of the unplatted ground north of the west branch and north of the north end of Emerson street and the blocks through which it ran, platted their ground into Grand View addition to the city, and, in doing so, platted a street north through said addition corresponding to Emerson street as located south of the railroad. This street was named Emerson street and was a prolongation of old Emerson street, making it a straight street north from Van Horn street through Moberly and through Grand View addition to a county road leading into same. The street, as thus prolonged, crossed the railroad. There was no condemnation of the right of way over the railroad, none being required, as the railway company voluntarily put in a crossing over its line, which crossing was 16 feet in width. And thus Emerson street became one continuous and straight street over the crossing in question. The evidence tends to show that it is a muchtraveled street, has one business house on it, that the store where plaintiff was employed is only a half block east of Emerson street and two blocks south of the crossing; that the same is a public crossing over which travel of every description passes. If we understand defendants' contention, it seems to be that by the reduction of the city limits, the right of way of the railroad became the north line of the city limits at the point in controversy, and therefore the crossing is not inside the city, and hence is not such as is required to be 24 feet wide. But whatever effect might result if that were true, yet the evidence does not show that the ground where the crossing is located was excluded from the city limits. It was only the "grounds owned by the Wabash" and between the two branches that were excluded, and there is no showing that these grounds extended as far west as the ground north of the location of the crossing. Indeed, it seems that it did not, since these grounds are referred to as having the roundhouse, foundry, and other company buildings thereon, and the ground covered by Grand View addition was platted by others than the railroad, and there is no showing that this last-mentioned ground was owned by the railroad at the time the limits were reduced.

The ground on both sides of the railroad, at the point where the crossing is located, having been shown to be within the city limits, that condition or situation is presumed to continue until the contrary is shown, and since defendants' evidence fails to show the contrary, the crossing must be accepted by us as being within the city. In fact, the plat filed in this court by agreement shows that the grounds of the railroad between the two branches do not extend west far enough to reach the crossing or the ground north of it. This obviates any need of our discussing the question as to the character of the crossing required had it been on the boundary line of the incorporated limits but inside of the inhabited territory of the town considered as an aggregation of dwellers.

As the crossing was within the city limits, the fact that there was no condemnation across the right of way so as to connect old Emerson with new Emerson street does not affect the width of the crossing required. Upon the platting of new Emerson street north of the track and its acceptance by the city, the railroad voluntarily opened the street across its right of way, put in a crossing and built a sidewalk along the street where it crosses the right of way, so that there was a continuous sidewalk along the entire length of Emerson street as thus prolonged. Such acts on the part of the railroad constituted a voluntary dedication in pais of the street across the right of way. Meiners v. City of St. Louis, 130 Mo. 284, 32 S. W. 637; Drimmel v. Kansas City, 180 Mo. App. 344, 168 S. W. 280. And where the intention to dedicate is unequivocally manifested, the dedication is complete and no user for any definite period is necessary. Heitz v. St. Louis, 110 Mo. 618, 19 S. W. 735. The street thereupon became a lawfully established street even as to the part on the right of way, and the crossing required was such as the law demands within a town.

The statute (section 10626) in reference to crossings is dealing with public roads or town streets "now or hereafter to be opened for public use." As said in Lee v. St. Louis & San Francisco R. Co., 150 Mo. App. 175, loc. cit. 182, 129 S. W. 773, 775:

"There is no word here indicating that the obligation was enjoined only in respect to such roads (or streets) as were opened by legal proceedings or established by both user and the expenditure of public moneys thereon."

The case is unlike those where the railroad has never done anything to open a road or street across its right of way, and either the municipality is seeking, without condemnation, to compel the putting in of a crossing, or it is sought to hold the road liable for not putting in a statutory crossing at a place where there is no road or street established. Such cases are not in point here where the railroad clearly evinced an intention to dedicate by acts in pais. Even in one of the cases of the above character cited by defendants, the court say:

"There is nothing to evidence an intent on the part of the appellee (railroad) to dedicate this crossing between the two sections of Thomas street to the public as a highway. The record does not disclose any act or declaration on the part of the agents or officials of the railway company showing any such purpose." City of Atlanta v. Texas & P. R. Co., 56 Tex. Civ. App. 226, 120 S. W. 923, 926.

It is urged that the shying of the horse and not the lack of width of the crossing was the proximate cause of the injury. The evidence in plaintiff's favor on this point is that there were three tracks at the crossing; that he drove the horse onto the crossing in the middle of the planks; that in this manner he crossed the first track and came to the second track; that as he got to the second track the steam shot forth from the engine and the horse shied and turned to the left, and would have gone down the railroad, but the driver pulled him back somewhat into his course, and the horse went forward and crossed the second track, but shied over to the left to such an extent that when the third track was reached, the left wheels of the wagon missed the ends of the crossing boards about 2 feet — that is, the wheels on the west side of the wagon missed the west end of the boards about 2 feet, while...