Spelman v. Delano

• Decision Date: 05 January 1914
• Citation: 163 S.W. 300,177 Mo. App. 28
• Parties: SPELMAN v. DELANO et al.
• Court: Missouri Court of Appeals

163 S.W. 300

177 Mo. App. 28

SPELMAN v. DELANO et al.

Kansas City Court of Appeals. Missouri.

January 5, 1914.

Rehearing Denied February 2, 1914.

1. RECEIVERS (§ 183)—OPERATION OF RAILROAD —PLEADING—ISSUES.

Where a petition alleged that defendants were operating the railroad as receivers, and such allegation was not denied or put in issue by a special plea, it would be regarded as admitted, and plaintiff was not required to prove the same.

2. JUSTICES OF THE PEACE (§ 92)—PLEADING —NECESSITY OF ANSWER.

No answer is required, in an action before a justice of the peace; defendant being presumed to plead the general issue.

3. PARTIES (§ 76)—GENERAL ISSUE—CHARACTER OR CAPACITY OF PARTIES—OBJECTIONS.

Pleading the general issue alone does not put in issue either the character in which the plaintiff sues or the character or capacity in which defendant is sued.

4. RAILROADS (§ 327)—CROSSING ACCIDENT— CONTRIBUTORY NEGLIGENCE.

Plaintiff's servant, while riding plaintiff's horse to his home after work, approached a railroad crossing, where he could have seen a train for two miles down the track from any point on the road for a quarter of a mile from the crossing. He was approaching on a lope, not thinking of a train, but watching a person on the track walking in the opposite direction, and just as he reached the rail he saw the train

200 feet away, when the horse took fright, rushed down the track ahead of the train, was struck and killed. Held, that the servant was guilty of contributory negligence as a matter of law.

5. BAILMENT (§ 1)—MASTER AND SERVANT (§ 1) — RELATION OF PARTIES — "GRATUITOUS BAILEE"—"SERVANT."

Where a servant, employed by plaintiff by the day, living about two miles from plaintiff's house, and spending his nights at home, after quitting work in the evening, borrowed one of plaintiff's horses to ride to his home, and while doing so the horse was killed at a railroad crossing the rider was a gratuitous bailee of the animal at the time of the accident and not plaintiff's servant.

6. NEGLIGENCE (§ 90)—IMPUTED NEGLIGENCE —GRATUITOUS BAILEE.

Where, at the time of the killing of plaintiff's horse at a railroad crossing, the rider was a mere gratuitous bailee, his relation to plaintiff involving no element of partnership, principal or agent, or master and servant, the rider's contributory negligence was not imputable to plaintiff, in an action against the receivers of a railroad company for negligently killing the horse.

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

Action by Philip E. Spelman against Frederick A. Delano and others. Judgment for plaintiff, and defendants appeal. Affirmed.

N. S. Brown, of St. Louis, and Robertson & Robertson, of Mexico, Mo., for appellants. Don C. Carter, of Sturgeon, for respondent.

TRIMBLE, J.

In this action recovery is sought for the negligent killing of a horse by defendant's train at a public crossing. The negligence charged was a failure to obey the statute with reference to ringing the bell and sounding the whistle 80 rods from the crossing.

On the occasion in question the horse was being ridden along the public road by one Dan Cook, a young man who was engaged in working by the day for plaintiff. Cook lived about two miles from plaintiff's house. He spent his nights at home, furnished his own meals, and quit work every evening at 6 o'clock. Occasionally he would ask plaintiff for a horse to ride home. And, if the request was agreeable to plaintiff, it was granted; Cook keeping the horse over night at such times and returning him next morning when he came to work, feeding and caring for the horse while in his possession. This obtention of the horse occurred possibly as often as twice a week.

On the day the horse was killed, young Cook obtained the horse when the day's work ended and started homeward, riding bareback. The crossing was about a mile west of plaintiff's house, and it was also a mile south from plaintiff's home to the railroad; it lying in a northwest and southeast direction. It was plain, open country, and one could see down the railroad on each side of the crossing for a long distance, and could do this continuously while going along the public road for at least a quarter of a mile before reaching the crossing. And in traveling this quarter of a mile toward the crossing one could see southeast (or east as it is termed in railroad parlance) down the railroad for a mile or two. It was about 6:30 in the evening. Cook was approaching the crossing in a lope, which is a slow gallop. The train was a fast mail, going northwest (or west in railroad terms). It was about 25 minutes late. A man named Pringle was walking down the railroad track, coming from the northwest, approaching the crossing, and about 800 feet away from it. At that distance he could see Cook a quarter of a mile from the crossing. Before noticing Cook he saw the steam from the approaching train and knew that one was coming. Engaged in watching the train, he paid no further attention to Cook, until the latter got close to the crossing, and then the train was in 200 or 300 feet thereof. It was 150 or 200 feet from the crossing when Cook got right up to the track.

As Cook approached the crossing, as stated, in a lope, or, as he said, in a trot, along the country road, he looked northwest along the railroad track and saw Pringle. He did not, however, look to the southeast, although if he had done so the train would have been in plain view and he would have seen it, and could have seen it for a mile or two down the track. He did not look southeast in the direction from which the train was coming because he supposed it had gone, as it was past time for it to be there. As he rode up on the track or just to the track, both he and the horse, at the same instant, saw the train coming from the southeast and about 200 feet away. The horse turned and ran northwest along the track, so that, when the train overtook him, the pilot beam struck the horse on the left side a little below the tail, hurling him some distance along the right of way and killing him. In going alongside the track the horse jumped the cattle guard before the train struck him. Cook was on the horse when it jumped the cattle guard, but does not know whether he was on him when the horse was struck or not. He says the spot where he fell was about 6 feet from the cattle guard, and that where the horse fell was about 30 feet from the guard. The engineer says Cook slid off the horse before it went over the cattle guard, and that he was on the public road just far enough east of the crossing to escape being struck.

Plaintiff valued the horse at $200. Defendant demurred to the evidence, was overruled and the jury returned a verdict for $175. Defendant appealed.

Point is first made that the case cannot be affirmed because there was no proof that the defendant receivers were in charge of and operating the road. But the petition alleged that they were, and this was not denied or put in issue by a special plea.

The case originated in the justice court, and, under the pleadings required in such courts, no answer is necessary, nor was one filed. But in such cases the defendant is presumed to plead the general issue. Reed v. Snodgrass, 55 Mo. 180; Farmers' & Drovers' Bank v. Williamson, 61 Mo. 262.

When the general issue alone is pleaded, it does not put in issue either the character in which the plaintiff sues or the character or capacity in which the defendant is sued. McNulta, Receiver, v. Lockridge, Adm'r, 137 Ill. 270, 27 N. E. 452, 31 Am. St. Rep. 362. The fact that the receivers were in charge and operating the road being thus impliedly admitted, plaintiff was not required to prove such allegation. Powers v. C., B. & Q. Ry. Co., 142 Ill. App. loc. cit. 524; Taylor v. Peoria & E. R. Co., 156 Ill. App. loc. cit. 155; Walker v. Wooster's Adm'r, 61 Vt. 403, 17 Atl. 792; 1 Chitty on Com. Law Pl. (16th Am. Ed.) 528. This was true at common law, and it is equally so under the Code. Baxter v. St. Louis Transit Co., 198 Mo. loc. cit. 6, 95 S. W. 856.

The point next raised is that defendants are not liable because Cook was guilty of contributory negligence. The first question under this point, then, is: Was Cook guilty of contributory negligence? If this be answered in the affirmative, then a second question arises, namely: Was he, at the time the horse was struck, a servant of the plaintiff, or was he merely a bailee of the horse? If he was a servant of the plaintiff at that time, then his negligence was plaintiff's negligence, and, in that event, plaintiff cannot recover. If not a servant but merely a bailee, then a third question arises: Can the negligence of the bailee avail appellants as a defense to an action by the plaintiff bailor? In other words, if Cook was guilty of contributory negligence, can that negligence be imputed to the plaintiff, in an action by him against the defendants for negligently injuring the horse?

Undoubtedly Cook was guilty of contributory negligence. He admits that he never looked toward the southeast to see if a train was coming, although, if he had done so, he could have seen a train for two miles down the track and could have seen it from any point on the country road for a quarter of a mile back from the crossing. He was riding in a lope, or trot, as he says, not thinking about a train, but watching Pringle as he came down the railroad from the northwest. Thus engaged, and heedless of his danger, although he knew it was at a railroad crossing, he started to cross the track, and just as he reached the rail he saw the train 200 feet away. If this does not constitute contributory negligence, it is hard to conceive of what would. Newton v. Railroad, 152 Mo. App. 167, 132 S. W. 1195; Burge v. Railroad, 244 Mo. 76, 148 S. W. 925; Holland v. Railroad, 210 Mo. 338, 109 S. W. 19.

Was Cook, at the time the horse was injured, the servant of plaintiff? He was not. He worked for ...