Randle v. Pacific R.R.

• Decision Date: 31 October 1877
• Citation: 65 Mo. 325
• Parties: RANDLE ET AL., APPELLANTS v. PACIFIC RAILROAD
• Court: Missouri Supreme Court

65 Mo. 325

RANDLE ET AL., APPELLANTS

v.PACIFIC RAILROAD

Supreme Court of Missouri.

October Term, 1877.

Appeal from St. Louis Circuit Court.

The case was tried, at special term, before HON. CHESTER H. KRUM, one of the judges.

Hitchcock, Lubke & Player for appellants.

We deny the right of respondent to treat the cause in this court, to which it has been brought by appellant alone, on exceptions, few and distinct, and which were taken only by appellant, as if respondent had taken that appeal and had properly preserved exceptions. No question ought to be or ever is considered by this court, unless such question arise upon errors manifest in the record, and upon exceptions properly taken by the party who attempts to complain here of such errors. Swearingen v. Newman, 4 Mo. 456; Cook v. Davis, Id. 622; Fuggle v. Hobbs, 42 Mo. 537. Respondent took no appeal, and saved no exception to the refusal of the circuit court to nonsuit the plaintiffs, on the contrary, having failed in that effort, respondent sought and obtained from the circuit court an instruction which expressly recognized a right of action in the plaintiff, but compelled the jury to disregard any and all evidence before it which the jury might have considered sufficient for some amount of damages, and restricted them expressly to the nominal damages.

The question of the lawfulness or unlawfulness of the defendant's railroad track on Poplar street, was not passed on in such a manner as to be the subject of an exception at the trial by either party; that question, therefore, is not a question now before this court.

Respondent's brief erroneously assumes:

1. That this was simply an action on the case for the negligent management by the defendant of its railroad, instead of being, as it really is, an action for damages for maintaining a public nuisance.

2. That the burden of proof rested upon the plaintiffs to show that defendant did negligently and carelessly use its road, so as to produce the injury complained of. See Fitch v. Pacific R. R., 45 Mo. 325; Bedford v. Hann. & St. Joe. R. R., 46 Mo. 458. We insist that the verdict of the jury, a fortiori when it is based upon an instruction asked by the defendant itself, and in the absence of any motion for a new trial, or attempt to set aside that verdict, is conclusive in this court of the existence of a cause of action such as set out in the petition. If so, it is not for this court to inquire--especially in favor of a party who does not appear here even as complaining of that verdict--where was the burden of proof, or whether there was evidence of negligence, or whether the question was merely a question of negligence, or was the very different question of the existence of a public nuisance attended with special private damage to the plaintiffs. This is not an action on the case for negligence merely. It is expressly and distinctly an action on the case by individuals for special damages sustained by them, by reason of a public nuisance maintained by the defendant. The petition specifies several distinct grievances, which together, constituted the nuisance, and then charges in express terms, as follows: “Plaintiffs further state that by the acts of defendant aforesaid, the defendant did create and maintain upon said street, contiguous to the premises of plaintiff, a dangerous and insufferable nuisance, whereby plaintiffs were greatly damaged.”

It cannot be contended for a moment, that the annoyances specified in the petition, assuming them as proved to exist, did not amount to a public nuisance. Nor can it be denied, that there was abundant proof, not only to submit to the jury the question whether there was such a nuisance, but to completely justify their verdict that there was one. Whalen v. Keith, 35 Mo. 87; Hayden v. Tucker, 37 Mo. 221.

In addition to the foregoing points, appellants' counsel filed an elaborate brief assigning for error the action of the circuit court:

1. In excluding evidence offered, and ruling out questions to witnesses proposed by appellants, with reference to the amount of injury sustained by appellants from the nuisance complained of.

2. In giving to the jury, on defendant's motion, an instruction that appellants could not recover any except nominal damages.

The court having decided the case without reference to these grounds, the points presented are omitted.J. N. Litton for respondent.

I. The right to build and operate this road on this street with locomotives and steam power, (which is conceded,) of itself exempts defendant from responsibility to plaintiffs for all damages that result from the careful and prudent operation of its trains. All such injuries are damnum absque injuria. See 33 Mo. 128, Porter v. North Missouri R. R. Co.;12 Mo. 420, (Houck's Ed.) p. 272, City of St. Louis v. Gurno;103 Mass. 6, Presbrey v. Old Colony R. R.; 103 Mass. 14, 15, Walker v. Old Colony R. R.; 21 Ill. 522, Moses v. P. Ft. W. C. R. R. Co.; 33 Penns. St. 181, New York and Erie R. R. v. Young; 35 Maine 323, Rogers v. Kennebec R. R. Co.; 29 Iowa 152, Slattem v. Des Moines R. R.; 73 Penns. St., 29 Danville, &c., R. R. v. Commonwealth;9 Dana 289, Lex. and Ohio R. R. v. Applegate. And other authorities cited under next point and in the argument. Same principle see: 55 Mo. 119, Imler v. Springfield;53 Mo. 162, Schattner v. City of Kansas; 4 N. Y. 195, Radcliff's Ex. v. Mayor of Brooklyn;15 La. Ann. 559, Barbin v. Police Jury; 14 La. Ann. 120, Bennett v. City of New Orleans. That among such damages, for which no recovery can be had, are the noise and vibration caused by passing trains and the smoke from the locomotives. 10 Kansas Rep. 566, A. & N. R. R. Co. v. Garside; 10 Ohio St. 624, Parrott v. Cin., Ham. & D. R. R.; 103 Mass. 14, Walker v. Old Colony R. R. Co.; House of Lord's Cases, (Vol. 4,) Law Reports, 1869, 1870, p. 202, Brand v. Hammersmith, &c., R. R. Co.; 29 Eng. Law and Eq., p. 22, Calidonian Rwy. Co. v. Ogilvy; 56 Penns. St. 334, Cleveland, &c., R. R. Co. v. Speer; 1 Redfield on Railways (3rd Ed.) 293, § 74, 9; 12 Mo. 420, City of St. Louis v. Gurno;21 Ill. 522, Moses v. P. Ft. W. C. R. Co.; 4 Harrington 253, Burton v. R. R. Co.; 16 Barb. N. Y. 106, Troy & Boston R. R. v. Northern Turnpike Co.; 60 Maine 290, Bangor v. Pisc. R. R. Co.

II. The defendant is only liable for negligence in the management of its train.

III. There can be no recovery on the ground of negligence, because there is no allegation in the petition to sustain such proof.

IV. There was no proof of negligence.

V. If there had been any proof of negligence, defendant thereby became liable only for the direct and proximate consequences of that negligence, and did not by occasional acts of negligence become liable, not only for the consequences of those acts, but also for the consequences of the most careful and prudent operation of its trains.

VI. The burden of proof is upon the plaintiffs to separate the consequences of the illegal use of the road, from those arising from the legal use--and if they fail to so separate them, or to present facts which enable the jury to do it with at least a reasonable degree of accuracy, they can only recover nominal damages.

VII. The plaintiffs in this case failed to do so, therefore the instruction given by the court as to the measure of damages was correct.

VIII. It is not true that we are, as claimed by appellants, concluded by our request of the court to declare that: “The court instructs the jury that under the evidence the plaintiff is not entitled to recover more than nominal damages,” from urging in this court that there was no evidence that the plaintiff was entitled to recover anything. This instruction still left it to the jury to determine whether the verdict should not be for defendant. Still less is it true that we are concluded from urging that the instruction was given on account of some occasional act of negligence, and was not a ruling of the court that every train that ran over the road for two years, was negligently managed, and that if the road had been carefully managed, no inconvenience would have been experienced by the guests in plaintiff's hotel. Certainly upon an appeal by plaintiffs from a judgment in their favor, on the ground that the judgment was too small, the defendant in its efforts to show that the verdict was not too small, is not estopped from showing that the verdict rendered is larger than it should have been, although it may not claim affirmative relief.

IX. A plaintiff cannot by his proof make out a different cause of action from that set out in his petition. 10 Mo. 406, Merle v. Hascall;44 Mo. 313, Murphy v. Wilson; 39 Mo. 287, Jones v. Louderman. Therefore he cannot recover by proving negligence and carelessness in the management of trains, when no such negligence is charged in the petition.

X. The petition was founded on the theory that this railroad was a nuisance because it was not authorized by law. The theory advanced in this court is that a railroad, although authorized by law, is per se a nuisance. This is plainly untenable. See, in addition to authorities already cited, Wood on Nuisances 782, §746; 8 Fla. 332, Geiger v. Filor. What has been authorized by law, cannot be (in law) a nuisance. 10 Ohio St., 624, Parrott v. C. H. & D. R. R.

HOUGH, J.

This was an action on the case for special damages alleged to have been sustained by the plaintiffs by reason of a public nuisance charged to have been levied by the defendant.

On the 5th day of July, 1872, the plaintiffs became lessees and proprietors of a hotel, located at the northeast corner of Seventh and Poplar streets, in the city of St. Louis, and known as the “Clarendon Hotel.” Previous to 1870, defendant's eastern depot in the city of St. Louis was located on the west side of Seventh street, immediately south of Poplar, defendant's track terminating previous to 1870 at that depot. After 1870 and during that year particularly, the defendant laid a track eastwardly upon and along Poplar...