Pruitt v. Illinois Southern Railway Company
| Decision Date | 21 February 1910 |
| Citation | 126 S.W. 199,147 Mo.App. 2 |
| Parties | WILLIAM PRUITT, Respondent, v. ILLINOIS SOUTHERN RAILWAY COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Francois Circuit Court.--Hon. Chas. A. Killian Judge.
AFFIRMED.
Judgment affirmed.
W. T Abbott and C. J. Stanton for appellant.
(1) The demurrer offered by appellant at the close of respondent's case should have been sustained. Respondent offered no proof to show a collision with appellant's train or that any train was ever run over the road near where the mule was found. Gilbert v. Railroad, 29 Mo.App 65; Lindsay v. Railroad, 36 Mo.App. 53; Logan v. Railroad, 111 Mo.App. 674; Perkins v. Railroad, 103 Mo. 52; Shaw v. Railroad, 110 Mo.App. 561. (2) All the evidence in this case went to show that the mule got on the track through the open gates, and that the open gates was the proximate cause of the accident. A complaint for not fencing, or for having a defective fence states no cause of action for leaving a gate open. Defendant's demurrer offered at close of the entire case should have been sustained. Stonebraker v. Railroad, 110 Mo.App. 497; Litton v. Railroad, 111 Mo.App. 144; Kavanaugh v. Railroad, 163 Mo. 54. (3) If an animal goes upon a railroad track in consequence of gate being left open, the construction of the gate, whether good or bad, is not the proximate cause of the accident; but the proximate cause is leaving the gate open, and plaintiff cannot be allowed to conjecture that if the gate had been closed the mule would still have entered upon the track. Dickinson v. Railroad, 103 Mo.App. 336; Kavanaugh v. Railroad, 163 Mo. 58. (4) As the evidence shows conclusively that the gates were shut at 2:45 o'clock in the afternoon of the day the mule was struck and only a few hours preceding the accident, and that the mule came upon the right of way some time during the succeeding night, by reason of the gates being left open by some third person, there is no liability on the part of the defendant. Ridenor v. Railroad, 81 Mo. 227; Binnicker v. Railroad, 83 Mo. 660; Harrington v. Railroad, 71 Mo. 384; Box v. Railroad, 58 Mo.App. 359; Stephens v. Railroad, 34 Mich. 323; Railroad v. Swearingen, 47 Ill. 206; Railroad v. Dickerson, 27 Ill. 55; Vineyard v. Railroad, 80 Mo. 92; Railroad v. Kavanaugh, 163 Mo. 54. (5) There was no evidence to indicate on the part of defendant either actual notice of the gates being open, or of sufficient time elapsing after the gates were left open, to impute notice to defendant of that fact, therefore no liability accrued to defendant on that score. Fitterling v. Railroad, 79 Mo. 504; Clardy v. Railroad, 73 Mo. 576; Case v. Railroad, 75 Mo. 668; Binnicker v. Railroad, 83 Mo. 660; Ridenor v. Railroad, 81 Mo. 227; Laney v. Railroad, 83 Mo. 466; Railroad v. Kavanaugh, 163 Mo. 58. (6) There is no substantial evidence to support the verdict in this case, and therefore the judgment should be reversed. No verdict will be permitted to stand unless it be supported by substantial evidence. Blumenthal v. Torino, 40 Mo. 159; Rea v. Furgeson, 72 Mo. 225; Crane v. Timberlake, 81 Mo. 481; Avery v. Fitzgerald, 94 Mo. 207; Long v. Moon, 107 Mo. 334; McFarland v. Accident Assn., 124 Mo. 204; State v. Bryant, 134 Mo. 246; Hewitt v. Steele, 136 Mo. 327; Cole v. Armour, 154 Mo. 333; Ashley v. Green, 38 Mo.App. 288; Kehoe v. Phillipi, 42 Mo.App. 292; Hientz v. Mertz, 58 Mo.App. 405; Gage v. Trawick, 94 Mo.App. 307; Cook v. Railroad, 94 Mo.App. 417; Baker v. Stonebraker, 36 Mo. 345; Price v. Evans, 49 Mo. 396; Beautrain v. Railroad, 78 Mo. 44; Rosecrans v. Railroad, 83 Mo. 678; Spohn v. Railway, 87 Mo. 74; Cannon v. Moore, 17 Mo.App. 92. (7) A verdict which must have necessarily been the result of a mere guess or conjecture on the part of the jury, ought not to be permitted to stand. Moore v. Railroad, 28 Mo.App. 622; Peck v. Railroad, 31 Mo.App. 123; Peffer v. Railroad, 98 Mo.App. 291; Shertle v. Railroad, 97 Penn St. 450.
Action to recover double damages for the killing of a mule by one of defendant's trains at an unfenced point on the railway where there should have been good fences and gates. The evidence for plaintiff went to prove the fences on either side of the right of way in the vicinity of where the animal was killed were down in many places and would not turn stock. A private road crossing was nearby which communicated with the country on either side of the right of way through gates, and the evidence shows good gates, with latches and hooks, and a high swing so they could be easily opened and closed, were hung at this crossing. The testimony for plaintiff goes to prove these gates had stood open almost constantly for three or four years and in fact several witnesses who passed the spot frequently, testified they never had seen them closed. On the other hand, the evidence for the company is the gates were kept closed as much as possible by the section gang, but travelers would leave them open. The section foreman testified he closed the gates at two-forty-five p. m. on July 7, 1907, the day the mule was killed. Some of the evidence for defendant went to prove the fence on either side of the right of way was maintained in good condition, and as to these matters there was a conflict. The mule was found lying on the track about six or seven o'clock on the morning of July 8th, with its side torn open and its entrails protruding. There were indications on the track it had been struck by an engine, and the conductor of one of defendant's trains testified his train struck it at nine o'clock on the night of July 7th. Notwithstanding this evidence we are asked to hold there was no proof one of defendant's trains collided with and killed the animal, which, of course, we decline to do.
It is contended all the evidence regarding where the mule got on the track, tended to prove it got on through an open gate and as plaintiff had declared against defendant for not maintaining the gates and fences in good condition, instead of negligently leaving the gate open, there was no evidence to support the verdict on the ground stated in the petition. The construction put on the double-damage statute is that it not only requires a railroad company to maintain good gates and fences, but to use diligence to keep the gates closed. [West v. Railroad, 26 Mo.App. 344; Morrison v. Railroad, 27 Mo.App. 418; Woods v. Railroad, 51 Mo.App. 500.] It follows defendant would be liable on the statute if plaintiff's mule got on the track in consequence of careless omission of the company's employees to keep the gates closed. In Atchison, etc., Railroad v. Kavanaugh, 163 Mo. 54, 63 S.W. 374, the Supreme Court held that if the animal killed was shown to have gone on the track through an open gate, it was immaterial whether the gate was constructed properly or not, as the fault of construction would not be the proximate cause of the death, but carelessly leaving the gate open. Following the principle of that decision, this court held in Stonebraker v. Railroad, 110 Mo.App....
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