Turner v. Hannibal & St. Joseph R.R. Co.

• Decision Date: 31 October 1881
• Citation: 74 Mo. 602
• Parties: TURNER v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

74 Mo. 602

TURNER

v.THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1881.

Appeal from Hannibal Court of Common Pleas.--HON. JOHN T. REDD, Judge.

REVERSED.

Geo. W. Easley for appellant.

The company had no control of the road, and is not liable. Pierce on Railways, 285 and notes. It was respondent's duty, under the facts in this case, to stop and look and listen for approaching trains before going upon the crossing. Railroad Co. v. Beale,73 Pa. St. 504; s. c., 13 Am. Rep. 753; Zimmerman v. Railroad Co., 71 Mo. 476; Henze v. Railroad Co., 71 Mo. 636.

Leach & Anderson for respondent.

The facts stand uncontradicted that the railroad track was lower than the gravel road, on which respondent was traveling, and that a train could not be seen from the point (fifty yards from the crossing) where he stopped his team and looked and listened for trains. The right of way between appellant's track and the gravel road was covered with brush six to eight feet high, making it difficult to see even a full train, when the view of the road is obstructed, making a lookout impossible. The omission of signals is negligence, and makes the railroad company liable. Taborv. Railroad Co., 46 Mo. 353; Kennayde v. Railroad Co., 45 Mo. 255.

HENRY, J.

This is an action to recover damages for an injury to plaintiff's team of horses and wagon, by a locomotive of defendant passing over its road. The allegation of the petition is, that the said locomotive ran against said horses and wagon, driven by plaintiff, in consequence of the negligent and careless manner in which it was managed by defendant's servants, who neglected to blow the whistle or ring the bell as the locomotive approached the crossing at which the accident occurred. The answer is a general denial, and also contains the following special defense: “That at the time of the said alleged injuries and grievances, the defendant's road was in the charge and control of one Sidney McWilliams, who had theretofore been appointed receiver thereof, by the circuit court of Livingston county, Missouri, in a suit wherein one Lemuel W. Morse was plaintiff, and this defendant and others defendants, and each and every one of defendant's officers, servants, agents and employes, enjoined and restrained from managing, controlling or operating defendant's road.” This, on motion of plaintiff, was by the court stricken out. A trial resulted in a verdict and judgment for plaintiff, from which defendant has appealed. At the close of plaintiff's testimony defendant asked an instruction in the nature of a demurrer to the evidence, which the court refused.

1. RECEIVER: corporation not liable for his acts.

The court erred in striking out the special defense set up in the answer. If the plaintiff had a cause of action on the facts alleged in his petition, he could, with leave of the Livingston circuit court, and not otherwise, have sued the receiver; ( Barton v. Barbour, 13 Rep. 129; s. c., 104 U. S.--; but he had no cause of action against the railroad company if the facts stated as a special defense are true. Upon what principle can a company be held liable for any injury inflicted upon any one by a train of cars of which the company had no control? Can the right to operate and manage its road and rolling stock be taken from the company and given to a receiver, under whose control and management it is operated, to the exclusion of the company, and yet the latter be responsible to a person injured in consequence of the negligent operation of the road by such receiver? The question suggests its answer, and it is adverse to the plaintiff. In the brief of respondent's counsel, it is stated that the injury to the horses and wagon in question occurred before McWilliams took charge of the road, but this would have appeared much better in a replication than in a brief.

2. A CASE OF CONTRIBUTORY NEGLIGENCE.

As, for the error here noticed, the judgment will be reversed, it is proper to add, that on the authority of Fletcher v. Pacific Railroad Co., 64 Mo. 484; Harlan v. St. L., K. C. & N. R. R. Co., 64 Mo. 480; 65 Mo. 22; Henze v. same, 71 Mo. 636; Purl v. same, 72 Mo. 168, the demurrer to the evidence should have been sustained. The evidence for plaintiff showed that the gravel road from Hannibal west runs parallel with defendant's road for a quarter of a mile east of the crossing at which the injury complained of occurred. For that distance the roads are about 100 yards apart. Plaintiff was traveling west, and the locomotive which struck his team was moving in the same direction. Plaintiff testified for himself that he was returning home from Hannibal; that he looked back when he got to Mrs. Barbee's gate, but the brush was so thick he could not see a locomotive. The gate is on the right-hand side of the gravel road going west, about twenty yards from the railroad. Was going home in a tolerable...