Rice v. Chicago, Burlington & Quincy Railway Company
| Decision Date | 10 November 1910 |
| Citation | 131 S.W. 374,153 Mo.App. 35 |
| Parties | WILLARD D. RICE, By next friend, Respondent, v. CHICAGO, BURLINGTON & QUINCY RAILWAY COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Scotland Circuit Court.--Hon. Charles D. Stewart, Judge.
AFFIRMED.
Judgment affirmed.
M'Kee & Jayne, H. H. Trimble and Palmer Trimble for appellant.
(1) The demurrer to the evidence at the close of all the evidence should have been sustained. Negligence cannot be presumed from the fact of an accident and resulting injury. Yarnall v. Railroad, 113 Mo. 570; Schafer v Railroad, 128 Mo. 64; Railroad v. MacKinney, 135 Pa. 462. (2) Where there is proof of a failure in any of the machinery or appliances used by defendant in transporting the complaining party, and that such failure caused the injury complained of, then negligence may be inferred, but where the injury is caused by an outside or extrinsic cause a different rule applies. Plaintiff must show by a preponderance of evidence that defendant was negligent as respects this outside force. 4 Elliott on Railroads (2 Ed.) sec. 1644, notes 228, 229, 230, 231; sec. 1701, notes 152, 153, 173; Woas v. St. Louis Transit Co., 198 Mo. 664; Curtis v. Railroad, 18 N.Y. 534; Railroad v. MacKinney, 124 Pa. 462. (3) Only ordinary care required to guard against extrinsic causes, forces or obstacles. Woas v. St. Louis Transit Co., 198 Mo. 564; Flemings v. Mendenhall, Receiver, 88 Minn. 336; Tall v. Steamer Packet Co., 90 Md. 248; Railroad v. Pillsbury, 123 Ill. 9. (4) The cause of the injury complained of in this case was the limb of a tree that had fallen across the track. It was not an obstacle placed thereby the railroad company. Proof of such a cause does not raise a presumption of negligence. Schafer v. Railroad, 128 Mo. 71; Railroad v. MacKinney, 135 Pa. 402; Woas v. St. Louis Transit Co., 198 Mo. 676; Saunders v. Railroad, 60 N.W. 148; Curtis v. Railroad, 18 N.Y. 534; Lincoln Traction Co. v. Webb, 37 Am. and Eng. (N. S.) 369; Harrison v. Railroad, 23 Am. and Eng. (N. S.) 809; McCune v. Railroad, 55 P. Rep. 354; Fleming v. Railroad, 27 A. 858; Trotter v. Railroad, 122 Mo.App. 405; Clark v. Railroad, 127 Mo. 197; Dougherty v. Railroad, 9 Mo.App. 478. Citing Scott v. Dock Co., p. 485. 6 Thompson, Law of Negligence, sec. 7635. (5) The trial court cannot enlarge the issues in the case by instructions. The issues can only be settled by pleadings, either original or amendatory. Link v. Vaughan, 17 Mo.App. 585; Ernswerth v. Barton, 60 Mo. 511; Bank v. Armstrong, 60 Mo. 70; Glass v. Gelwinn, 80 Mo. 297; Waldhier v. Railroad, 71 Mo. 514; Feurth v. Anderson, 87 Mo. 354; Feary v. Railroad, 162 Mo. 96; Hemphill v. Kansas City, 100 Mo.App. 566; Thompson v. Bucholz, 107 Mo.App. 123; Bank v. Westlake, 31 Mo.App. 565. (6) Appellant was not guilty of negligence in permitting the tree in question to remain on its track, unless it knew or by the exercise of due diligence could have known that it was upon the track and failed after knowing or after being chargeable with knowledge to take proper measures to protect the train in question. 4 Elliott (2 Ed.), sec. 1644, note 228, 229, 230; Woas v. Railroad, 198 Mo. 664; Fleming v. Mendenhall, 88 Minn. 336; Frederick v. Railroad, 157 Pa. 103; Trotter v. Railroad, 122 Mo.App. 405; Railroad v. Kuhn, 6 S.W. 441, 86 Ky. 578; Connell v. Railroad, 93 Va. 44; Railroad v. Burke, 53 Miss. 200; Bretten v. Railroad, 18 N.Y. 534; Thomas v. Railroad, 23 A. 989; Stimpson v. Railroad, 75 Wis. 381.
T. L. & L. J. Montgomery and N. M. Pettingill for respondent.
(1) It was the duty of defendant to remove the tree standing within fifty feet of the south rail of its track, as there was danger of its falling on the road, whether said tree was on or off the right of way. Whether it was sound or rotten. R. S. 1899, sec. 1035, par. 3; Railroad v. Vallie, 60 Tex. 481. (2) Plaintiff made out of a case authorizing the court to submit the allegations of negligence by showing the collision of the train with the tree and the breaking of the car windows in which plaintiff was riding causing the injury to plaintiff. Ferguson v. Railroad, 123 Mo.App. 590; Clark v. Railroad, 127 Mo. 197; Sweeney v. Railroad, 150 Mo. 384; Furnish v. Railroad, 102 Mo. 438; Padgett v. Railroad, 159 Mo. 143; Thomas on Negligence (1 Ed.), p. 230; Railroad v. Vallie, 60 Texas 481; 5 Am. and Eng. Ency. Law (2 Ed.), p. 522; Johnson v. Railroad, 104 Mo.App. 588; Allen v. St. Louis Transit Co., 183 Mo. 311; 2 Greenleaf on Evidence (15 Ed.), 214 note; 2 Encyclopedia of Ev., p., 909, 915; Sullivan v. Railroad, 72 Am. Dec. 698; 6 Cyc. Law and Proc., p. 619, par. 5 and 6. (3) If the fire in the tree, even though not communicated by defendant's engine, concurred in causing the collision, defendant is liable. Newcomb v. Railroad, 169 Mo. 409; 1 Thompson on Negligence (1 Ed.), sec. 75, vol. 3, sec. 2779; Bishop on Non-Contract Law, secs. 39 and 518; Brash v. St. Louis, 161 Mo. 437; Sherman and Redfield on Negligence (5 Ed.), sec. 122.
This is a suit for damages accrued to plaintiff on account of personal injuries received through the alleged negligence of defendant, a carrier of passengers. Plaintiff recovered and defendant prosecutes the appeal.
The matter for consideration presents, first, the question as to whether or not the doctrine of res ipsa loquitur obtains on the facts of the case, and, second, as to whether the judgment for plaintiff may be sustained though it was given on a detail of negligence not pointedly alleged in the petition, although within the general scope of the cause of action alleged, which relates to defendant's breach of duty to exercise high care for plaintiff's safety.
Defendant is a public or common carrier of passengers. It appears plaintiff was a passenger on its train en route from Downing to Memphis, Missouri, and during the transit the train collided with the top or several limbs of a large tree which had fallen across the track. Upon colliding with the branches of the tree top, the locomotive and cars passed through the same, but, while passing, one limb scraped along the side of the car and shattered the glass in the window adjacent to which plaintiff was sitting, which resulted in destroying his eye. The petition contains a general allegation of negligence to the effect that defendant breached its duty to exercise high care for plaintiff's safety by allowing its track to be obstructed in permitting a large tree to be and remain on and across said track so that the train and car upon which plaintiff was riding ran into and collided therewith. At the trial, plaintiff introduced evidence tending to prove that he was a passenger on defendant's train en route from Downing to Memphis, about 7:30 o'clock in the evening when the train ran into or collided with an obstruction on the track; and that such obstruction was the top branches of a large tree. It was shown that upon running into the tree top the engine passed through the same and a limb of about two or three inches in diameter scraped along the side of the passenger coach, in which plaintiff was being conveyed, with such force as to break and dissever the glass in the window adjacent, a portion of which glass flew into and destroyed his eye. The proof on the part of plaintiff in no manner suggested how the tree top came upon the track nor did it suggest how long it had been there nor from whence it came. Indeed, plaintiff rested his case prima facie on the presumption of negligence which usually attends the facts of showing a collision on a railroad with an obstruction on the track, when the relation of passenger and carrier exists. At the conclusion of this proof, defendant requested the court to direct a verdict for it on the theory that a presumption of negligence did not arise on the facts appearing and it devolved upon plaintiff to make a showing to the effect defendant had either placed the tree top on its road or had known, or, by the exercise of due care, might have known, its presence to the end of showing a breach of its obligation as to removing the same. The court declined to instruct a verdict for defendant and tried the case as though the presumption of negligence obtained.
It is argued here on the part of defendant that the doctrine of res ipsa loquitur as between carrier and passenger obtains only in those cases where it appears the injury resulted from some defect in the carriage or appliances for transportation or in the construction of the road, such as a defect in the track or a bridge or a collision with another train on the same track, for it is said these things in and of themselves suggest a dereliction of duty somewhere on the part of the carrier as to the means and appliances afforded by it for the transportation or as to its servants in operating the same. There can be no doubt that the mere fact of injury suffered by a passenger while on his journey, without any evidence connecting the carrier with its cause, is not sufficient to raise the presumption of negligence on the part of the carrier. But if the proof as made suggests the injury to have resulted from a breach of care on the part of the carrier, then the presumption goes to that effect. [Shearman & Redfield on Negligence (5 Ed.), secs. 516, 559, 560.] There are instances of injuries to passengers where the proof of the injury itself discloses no lack of duty performed on the part of the carrier. In such circumstances, instead of the facts suggesting and invoking a presumption to the effect that the carrier is negligent, the presumption is actually repelled, and for that reason, does not obtain. ...
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