Weesen v. The Missouri Pacific Railway Company

• Decision Date: 05 January 1914
• Parties: JOHN R. WEESEN, Respondent, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant
• Court: Kansas Court of Appeals

162 S.W. 304

175 Mo.App. 374

JOHN R. WEESEN, Respondent, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

January 5, 1914

Appeal from Moniteau Circuit Court.--Hon. John M. Williams, Judge.

REVERSED.

Judgment reversed.

C. D Corum for appellant.

R. M Embry for respondent.

OPINION

JOHNSON, J.

This is an action for damages plaintiff alleges were caused by negligence of defendant, a common carrier, in the transportation of three carloads of fat hogs to market. Plaintiff recovered judgment in the circuit court and defendant appealed.

The material facts of the case are as follows: On June 8, 1910 plaintiff delivered the hogs to defendant at Tipton, Mo., for transportation to the National Stockyards at East St. Louis, Ill. The train carrying the hogs left Tipton at nine o'clock in the evening and if nothing unusual had occurred would have arrived at the stockyards the next morning in time for the market of that day. But delays occurred and the shipment did not reach its destination until the afternoon of Saturday, June 13th. Plaintiff contends that these delays, which were unusual, were caused, in part, at least, by negligence of defendant while defendant seeks to escape liability for the damage they caused plaintiff, on the ground that an act of God was their sole cause. Shortly after the train carrying the hogs left Tipton the country east of Jefferson City was swept by a rainstorm of unprecedented violence and magnitude which caused extensive landslides at Bonnot's Mill, thirteen miles east of Jefferson City and at St. Aubert, a station seven miles further east. The railroad which skirts the Missouri River bluffs at these places were covered by these landslides. Shortly thereafter these obstructions were discovered and immediate and efficient measures were taken by the employees of defendant to clear the track. The obstruction at Bonnot's Mill was removed and the track made safe for the passage of trains before eleven o'clock the next morning. The train carrying the hogs which had been held overnight at Jefferson City passed Bonnot's Mill shortly after the track was cleared and proceeded to St. Aubert. The agents of defendant in charge of the work expected to clear the track at the latter place that morning but their efforts to that end were defeated by a peculiar condition of which they were ignorant until its existence was revealed during the progress of the work. The landslide from the slope of the bluff was not as extensive at this place as at Bonnot's Mill and the force employed by defendant would have removed it in two or three hours but for the fact that the railroad embankment had been undermined by a new current in the river and these inroads which were not disclosed until after the men began removing the mud from the track co-operated with the excessive rainfall to maintain an obstruction of the most obstinate character. As fast as mud was removed from the track it was replaced by a fresh slide and this condition obtained until the hole the river had made in the base of the embankment had been filled. Defendant's superintendent who hastened to the scene and took charge of the work testified on direct examination:

"How did it compare with similar troubles on other dates, of a like nature? A. That was the most serious trouble of any trouble we ever had on the road of that nature. We never were obstructed on the road as long as we were at this time.

"Q. What efforts did the company make towards remedying this as it occurred? A. Why, we got all the material necessary--all the material we could secure, which was sufficient, and all the men we could handle and all the men that could work around it, and we worked at it continuously until we got the trains going.

"Q. What kind of material? A. Filling, flags, cinders, gravel chatts, crossties and timbers.

"Q. About how many men were working there? A. Well, we never had less than a hundred at any time. We took gangs off of the River Route that we were working on, on washouts and slides, and brought them down, because this was more important than the River Route.

"Q. When you first got to the scene of the washout or the slides, did you then realize it would be several days before trains could pass? A. No, I thought by the time we got another train load of material unloaded, and the track laid on it, that they would go over it; but I found out after we got that in and tried to pass a train we couldn't do it. It just kept going down.

"Q. And when did you first realize it would be impossible to get trains over for some time? A. Oh, eight or nine o'clock that night.

"Q. The night of the 9th? A. Yes, I knew we couldn't get them over. In fact, I wouldn't risk it.

"Q. About what time did this trouble begin to get so serious that it could not be remedied within a few hours? A. Well, it seemed afterwards it was that serious from the start, but we didn't appreciate it. Similar cases heretofore and since have been cured by unloading a few carloads of material in them, and pull the cars over.

"Q. If it had been a mere landslide covering the track a few feet deep, how long would those landslides reasonably have delayed a train? A. Not over a couple of hours. The worst we had at that time was at the east switch at Bonnot's Mill, and that we cleared in about two hours so the trains could get through.

"Q. Will you describe once more now the real difficulty at St. Aubert so I can get that clear? A. The real difficulty according to our observation was the fact that the river had changed its course and cut the toe of the bank--that is the name we apply to the bottom of the bank--and that permitted the weight above to go down. We never got a permanent bank there until we unloaded sufficient material and let it slide down to fill that hole the river had made to restore the bank to its original shape.

"Q. Have you any idea how many carloads of chatts and material were unloaded there? A. There were over one hundred and fifty. I don't know how many more. I know it was that many. There was no expense spared. We didn't look at the expense when we went to do it.

"Q. Can you tell about when the first train passed over this place? A. About when? Q. Yes. A. About somewhere between 11:30 and noon. They were standing all over the road waiting to move as soon as we got it open. Q. That was on the 10th? A. Yes, that was on the 10th. They were standing on each side from Jefferson City and St. Louis waiting to...