Stoher v. St. Louis, Iron Mountain & Southern Railway Co.
| Decision Date | 16 May 1887 |
| Parties | Stoher v. The St. Louis, Iron Mountain & Southern Railway Company, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis Court of Appeals.
Reversed.
Bennett Pike for appellant.
(1) Plaintiff's own testimony did not make a prima facie case, and the demurrer to the evidence should have been sustained. Wood on Master and Servant, secs. 368, 419; Huffman v. Railroad, 78 Mo. 54. (2) The court committed error in the admission of testimony offered by plaintiff, against the objection of defendant. 1 Greenl. on Evid., sec. 52, p. 440, note 4; Hudson v. Railroad, 59 Ia. 581; 2 Starkie on Evidence, 381; Hubbard v Railroad, 39 Me. 506; Aldrich v. Pelham, 1 Gray, 510; Kidder v. Dunstable, 11 Gray, 344; Parker v. Portland Publishing Co., 69 Me. 173. (3) The court refused to admit proper and legal testimony offered by defendant. Railroad v. Fowler, 56 Tex. 452. (4) The court committed error in giving the instructions asked by plaintiff. Belt v. Goode, 31 Mo. 128; Bradford v. Pearson, 12 Mo. 71; Quinlivan v. English, 44 Mo. 46; Georges v. Hufschmidt, 44 Mo. 179; Doehling v. Loos, 45 Mo. 150; Winters v Railroad, 39 Mo. 468; Ewing v. Goss, 41 Mo 492. (5) The court erred in refusing to give instructions numbered one, two, three, and four, asked by defendant. Railroad v. Sulphur Springs, 1 S. D., 6 P. F. S., 445; 2 Am. and Eng. R. R. cases, 170. (6) The court erred in giving instructions numbered one, two, three, four, and five, on its own motion, and in instructing the jury, orally, during the progress of the trial. Fitzgerald v. Hayward, 50 Mo. 516; Goetz v. Railroad, 50 Mo. 482; Railroad v. Arnold, 10 Am. and Eng. R. R. Cases, 219; Pierce on Railroads, 367, and cases cited.
No brief for respondent.
Bertha Stoher, an infant, brings this suit by her next friend in the circuit court of the city of St. Louis, to recover damages for the death of her father, Nicholas Stoher, who was killed by the derailment of a passenger train on the railroad of defendant, near Bismarck, Mo., whilst he was acting as fireman upon the engine then drawing said passenger train. Upon a trial of the cause, plaintiff had judgment for damages in the sum of five thousand dollars, from which the defendant appealed to the St. Louis court of appeals, where the judgment was affirmed, pro forma, from which the case was appealed to this court. None of the witnesses testifying in the cause seem to have been present when the cars were overturned and the father of the infant plaintiff killed. The railroad track at this place was "an embankment about a foot high, composed, mostly, of rock and gravel, and built on the solid rock." At a distance from the place of the accident, variously estimated by the witnesses at from six or seven hundred to one thousand feet, there was a culvert passing through the roadbed, designed and intended to carry off the water that fell and accumulated during rains in the basin situated on the eastern side of the railroad. This culvert was a double box culvert, each opening four feet by four, and together with the railroad had been constructed and in use for a number of years. During the night of May 9, 1880, there had been a rain storm, and the water had accumulated in this basin, and so washed the railroad track and weakened the embankment, that the same gave way under the engine passing along there at about half past three o'clock at night, which said engine was thrown from the track and the said Nicholas Stoher, fireman as aforesaid, was then and there killed.
The petition, so far as material, sets forth the grounds of recovery, in substance, that said deceased was not guilty of any negligence that directly contributed to cause said injuries and his death, but that the same was wholly caused by the negligence of defendant and its agents, in failing to keep its track in repair and in a suitable condition for the passage of its engines and trains of cars along and over its said track; that, at the place where said engine was thrown from the track, said track was out of repair, and was in a defective and dangerous condition, and unsafe for the passage of engines and cars over the same; that said track, at said point, was so defectively and negligently constructed that it obstructed the natural flow and drain of water, and did not allow said water an outlet; that, by reason of said obstruction and want of outlet, from rain or other causes, the water would dam up and over said track, thus rendering the same defective, and unsuitable for the passage of engines and cars on said track; that, at the time said engine was thrown from said track, the water, by reason of the said defective structure and condition of said track, had accumulated against and upon said track, and washed the soil from said track, so that when said engine went upon that portion of said track it gave way, and said engine was thrown from the track and killed said Nicholas Stoher, as aforesaid, without fault upon his part; and the plaintiff, who is a minor of about the age of eleven months, was the only child of said Nicholas Stoher, at the time of his death; that no action for damages was ever begun by the widow of said Nicholas Stoher; that, by the statute, in such cases provided, a cause of action has accrued to the plaintiff; that, by reason of the death of her father, the plaintiff was and is damaged in the sum of five thousand dollars, for which she demands judgment.
The answer of the defendant denied the allegations of the petition, except as therein afterwards admitted, and then set up that, on, and long prior to, said May 9, said Stoher had been a fireman in its employ, accustomed for several years to run on and over said portion of its railroad; that said track, prior to and up to the date of the accident, was well and skillfully built and constructed, and was in a state of good repair, as was well known to said Stoher; that, a few minutes prior to the accident, a sudden, violent, extraordinary, and unprecedented rain storm prevailed at and near the place of the accident, in and during which an amount of rain fell to an extent previously unknown in that part of the country, by reason of which, and of wood and stones thrown against it, the said track at the place or point where said Stoher was killed was moved and gave way, and not on account of any defect or want of strength to withstand all ordinary or usual rain storms or freshets occurring at said place; that said track was amply sufficient to withstand the flow or fall of water caused by ordinary and usual rain storms that could be reasonably expected to occur at said point, and had withstood all rainfalls occurring therewith for more than twenty years prior to the happening of said accident; that said Stoher and one Charles McPherson, who was the engineer of the locomotive upon which said Stoher was fireman, knew of the storm that prevailed, and was prevailing, at the time of the accident, by which said Stoher was killed, and that it was the duty of the said Stoher, and the said McPherson, to take all needful precautions against the effects of the same; that there was no time, after the falling of the rain aforesaid, and before the happening of the accident, for defendant's section men or track repairers, to go over and ascertain the condition of the said track, as Stoher and McPherson well knew, and that whatever negligence there was in running the engine and cars at said time and place, was their negligence, and that the injury and death of said Stoher was the direct result of his own negligence and that of his co-employe.
The evidence seems to be somewhat conflicting as to the extent and character of the rain storm during that night, and whether the same was extraordinary or merely severe and unusual, but such as had previously occurred in that region. So, we think, was the evidence as to the amount of the drainage basin and territory, for which the culvert in question was provided as the outlet, and, also, the evidence in respect to the condition of said culvert, and its sufficiency at that time to carry off the waters naturally collecting at that point during very severe and heavy rains. Whether proper care has been used in the construction of the railroad is, in general, a question of fact, and the sudden giving away of a part of the structure is, if unexplained some evidence of negligence in its construction. Shearm. & Redf. on Neg., sec. 448. A railroad company is bound to use reasonable care in constructing and maintaining its track and roadbed in such condition as to make the same reasonably secure for the use of passengers and employes, and is...
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