State ex rel. St. Louis-San Francisco Railway Company v. Daues

• Decision Date: 24 January 1927
• Docket Number: 27344
• Citation: 290 S.W. 425,316 Mo. 474
• Parties: The State ex rel. St. Louis-San Francisco Railway Company v. Charles H. Daues et al., Judges of St. Louis Court of Appeals
• Court: Missouri Supreme Court

290 S.W. 425

316 Mo. 474

The State ex rel. St. Louis-San Francisco Railway Company v. Charles H. Daues et al., Judges of St. Louis Court of Appeals

No. 27344

Supreme Court of Missouri

January 24, 1927

Motion for Rehearing Overruled January 24, 1927.

Writ quashed.

E T. Miller and A. P. Stewart for relator.

(1) The ruling of the Court of Appeals that plaintiff was entitled to rely upon presumptive negligence arising under the res ipsa loquitur rule, notwithstanding the evidence on the part of relator (corroborated by the evidence on behalf of plaintiff) established that the fall of the bridge and wreck of the train, and consequent injury to plaintiff, were caused by an outside agency, vis major, the unprecedented rainfall and flood, contravenes the rulings of this court in the following cases: Hurck v. Railroad, 252 Mo. 39; Evans v. Railroad, 222 Mo. 435; Hite v Railway, 130 Mo. 132; Turner v. Haar, 114 Mo 335; Davis v. Railway, 89 Mo. 340; Read v Railroad, 60 Mo. 199; Sawyer v. Railroad, 37 Mo. 241; Guthrie v. Holmes, 272 Mo. 215; Burge v. Railroad, 244 Mo. 76; Tetwiler v. Railroad, 242 Mo. 178; Mockowik v. Railroad, 196 Mo. 550; Stack v. Baking Co., 283 Mo. 396. (2) The ruling of the Court of Appeals approving Instruction 1 given at the instance of plaintiff, which (a) directed a verdict upon a presumption of negligence, whereas the presumption of negligence passed out of the case upon the appearance of the facts in evidence, and (b) required relator to establish that the fall of the bridge was not caused by its negligence, whereas when relator's evidence (corroborated by that for plaintiff) established vis major, relator was prima-facie exonerated, and the burden was then on plaintiff to prove specific negligence, is contrary to and in conflict with the controlling decisions of this court in the cases cited above and the following cases: Moberly v. Railway, 98 Mo. 183; Morton v. Heidorn, 135 Mo. 608; Rodan v. Transit Co., 207 Mo. 392; State ex rel. v. Ellison, 268 Mo. 239. (3) The ruling of the Court of Appeals that the alleged false representation relied on by plaintiff to avoid the release, admittedly executed by him, related to an existing fact or condition, conflicts with the controlling decisions of this court in the following cases: Edwards v. French, 304 Mo. 194; McFarland v. Railway, 125 Mo. 253; Homuth v. Railway, 129 Mo. 629; Lewis v. Land Co., 124 Mo. 672.

Douglass & Inman for respondents.

(1) The ruling of the Court of Appeals that plaintiff, who was a passenger on a train that was wrecked by the fall of a bridge, was entitled to rely on the doctrine of res ipsa loquitur although the defendant comes forward with evidence that the fall of the bridge was caused by an outside agency, vis major, an unprecedented rainfall, does not contravene any ruling of this court. (a) Where a passenger is injured by the wreck of a train it is firmly established in this State that the proof of these facts makes a prima-facie case for the jury and the burden of relieving itself from liability is then cast upon the defendant; and whether or not the defendant has successfully met the prima-facie case is always a question for the jury. See Bond v. St. Louis-San Francisco Ry. Co., 315 Mo. 987, growing out of this same accident. Simpson v. Railroad, 192 S.W. 739; Brown v. Railroad, 256 Mo. 522; Anderson v. Railroad, 290 Mo. 1; Gibson v. Wells, 258 S.W. 1; Cecil v. Wells, 259 S.W. 844. (b) The evidence of the defendant that there was an unusual rainfall was met by the plaintiff's rebuttal evidence by showing facts from which the jury could infer that the defendant's negligence was either the sole or a concurring cause of negligence in failing to make inquiry as to the character and extent of the rain; the failure of the trackmen to watch the track, as required by defendant's rules; that the piling under the defendant's bridge was rotten and defective. Authorities, supra. (2) Plaintiff's Instruction 1 is in conformity with the law as declared by the decisions of this court, cited above, and almost the identical instruction will be found in the following cases: Simpson v. Railroad Co., 192 S.W. 739; Price v. Railroad, 220 Mo. 435. (3) The fact that statements relate to the future will not preclude liability for fraud if such statements were intended and accepted as representations of a fact and involved a matter peculiarly within the speaker's knowledge. 26 C. J. 190; Berry v. Railroad, 223 Mo. 358; Wendell v. Orchard Co., 200 S.W. 747; Luchow v. Breweries Co., 183 S.W. 1125; Stonemets v. Head, 248 Mo. 243; Carroll v. United Rys. Co., 157 Mo.App. 247; Hoyt v. Bank, 247 S.W. 637; Huffmaster v. Tolando, 250 S.W. 470; 12 R. C. L. 446, sec. 90, 247, secs. 15, 16; Thomas v. Goodrun, 231 S.W. 571; Pulladin v. Farm Lands Assn., 225 P. 291.

White, J. All concur, except Graves and Ragland, JJ., absent.

OPINION

WHITE

Certiorari to the St. Louis Court of Appeals. One Hugh Whitlow recovered judgment against the St. Louis-San Francisco Railway Company, in the Circuit Court of the City of St. Louis for $ 6,430, for injuries received by him while a passenger on one of defendant's trains when it fell through a bridge. The defendant, relator here, appealed to the St. Louis court, where the judgment was affirmed in an opinion delivered by that court at the March term, 1926.

The evidence recited in the opinion of the Court of Appeals shows that the bridge which collapsed and caused the wreck was across a ravine known as Starland Creek, near Cape Girardeau. It was supported by piles, in groups, called bents, placed across the ravine. Six piles were in each bent. There were eleven bents placed about fourteen feet apart. The rails and ties were supported by timbers placed upon the top of those bents.

The train was south-bound. It ran on to the bridge about 3:55 a. m., September 1, 1922. A violent rainstorm had occurred during the night, flooding the ravine with a torrent which washed out bents numbered five and six, near the centre, leaving the bridge unsupported for a space of forty-two feet between the remaining bents. The engine crossed the weakened part, but fell on the further side, and several coaches, including the one on which Whitlow was riding, fell to the bed of the creek, thirty-five or forty feet below, where he received his injuries.

The plaintiff introduced evidence to show the wreck of the train and his injury, and rested. The defendant then introduced a large volume of evidence to show that just before the wreck a heavy rain had occurred, of greater intensity and destructive force than people living in the neighborhood had seen for many years, and that the engineer in approaching the bridge could not see anything wrong with it.

The piles which gave way, it seems, were set on the bottom of the creek on solid rock, with sand and mud around them. The sand and mud were entirely washed away, along with the piles. There was no evidence that the piles were anchored in the bottom by cement or otherwise. The plaintiff further showed that the piling in bent number 7, was badly decayed, and in number 4 was decayed so that it had but four and one-half to six inches of sound timber. A number of other witnesses for plaintiff testified to the rotten condition of the piling. The piling was put in all the bents in 1918.

I. The relator complains of error by the Court of Appeals in holding that the demurrer to the evidence was properly overruled, because the plaintiff relied upon the presumption of negligence arising under the res ipsa loquitur rule, whereas defendant introduced evidence, supported by testimony also of plaintiff's witnesses, to the effect that the storm which caused the collapse of the bridge was so unprecedented as to constitute vis major. Relator relies upon the doctrine that a presumption of fact which arises from unexplained circumstances, falls out of a case when the proof shows what the facts really were. Therefore, it is argued that, when the collapse of the bridge was shown to have been caused by the act of God, the presumption of negligence arising from the unexplained catastrophe was taken away and there was nothing to submit to the jury.

Relator cites the case of Hurck v. Railroad, 252 Mo. 39. There, a case was made out by showing a wreck and a consequent injury, and the defendant offered evidence to prove that an unprecedented snow storm, constituting an act of God, was the cause of the wreck. The defendant offered and the court gave an instruction to the effect that the burden of proof was upon the plaintiff to show that the derailment of the car in which he was riding was due to some defect or imperfection in the track, or want of care of some of the defendant's employees. There was a verdict for the defendant. The trial court granted a new trial on the ground that the instruction was erroneous, and that order was affirmed. This court said (l. c. 49): "Whether, therefore, the defendant had shown a condition of facts which exempted it from the presumption of negligence arising from the prima-facie case made by plaintiff, was a matter for the jury's determination." Instead of supporting the relator's position that case is against it. It was a question for the jury whether, under the facts stated, an act of God had intervened to exempt the defendant from the liability.

The Court of Appeals in its opinion on that point, after pointing out the facts stated by a number of witnesses as to the condition of the piling, said: "A number of other witnesses of the plaintiff testified to the rotten condition of the piling."

The pilings that washed away were not seen by plaintiff's witnesses, but defendant's witnesses testified they were found some distance down the river and they were all broken. The court said...