31 Mo. App. 661 | Mo. Ct. App. | 1888
Lead Opinion
This action is for damages resulting to plaintiff by reason of personal injuries suffered by his wife resulting, as is alleged, from an unsafe, insufficient, and dangerous crossing constructed on a public highway across defendant’s track. The answer was a general denial. There was a judgment for plaintiff for the sum of eleven hundred dollars and defendant appeals.
It appears from the evidence that plaintiff and his wife were moving from the south part of this state and were traveling westward in two farm-wagons at the time
The objections to plaintiff’s first and second instructions are, that they did not submit the question of contributory negligence. Contributory negligence, as has been frequently held, is a matter of defence and must be pleaded. Donovan v. Railroad, 89 Mo. 147. It is true, as stated in Milburn v. Railroad, 86 Mo. 104, that though such negligence is not pleaded, yet if the plaintiff’s own evidence discloses a clear case of contributory negligence, he must fail in his action. The question then in this case is, does the evidence for plaintiff show contributory negligence on the part of Mrs. Brown. It is shown she was an ordinarily good and careful driver; that the team was gentle, and that she had driven it one hundred and sixty miles. The crossing and its surroundings and condition is described by the witnesses with particularity.
Thomas Wright testified as follows: “I live near the crossing in question. The railroad crosses the state road, known as the Haynesville and Plattsburg road. Before the railroad was built, the road was level and safe. The road crossed a sort of bottom before the railroad was built. I have known it for forty years. I cross it every Sunday. I lived there at the time of the accident. I was road overseer; and the road was in my district. In crossing from the east, one has to keep to the south side of the east approach to avoid a hole, which is on the north side of that approach. When the track is reached, unless you are very careful, the wheel will drop down off the plank, and not strike solid ground. The plank extends twenty inches south, beyond the south brink of the west approach. The east
On re-direct examination the witness said : “To be entirely safe in going over the crossing, it is necessary to make a turn some to the north after getting on the track, and drive the team beyond the plank on to the end of the ties, where they are not filled with dirt.”
Monroe Treason testified: “I live one and one-half miles from the crossing and knew it in 1883, and passed just after the accident. The east approach comes up to the track in a curve. The crossing is wide enough if it was not for the curve, and the fact that the approaches are not opposite each other, one is liable to pull off if he does not watch. The south brink of the west approach is about four or five feet north of the
Jesse A. Wright testified: “I have known the crossing for twenty years, and knew it in N ovember, 1883. Coming from the east side the approach curves to the track, then goes straight. A hole on the north side of the east approach compels one to pull in one direction, and when the track is reached he must pull the other way. One cannot see over the track when coming up the east approach. The curve in the east approach and the hole in the north side of it throws the wagon too far south.”
On re-direct examination, the witness said : “If a person continues straight west over from the east side it would not be safe. One can’t see all the way over. Must pull north to get over safely, One not familiar with the crossing is in danger of going over.”
William Mott testified: “I am familiar with the crossing in question. Have always known it. The east approach is in a curve. It is scant nine feet wide the way they had it fixed. One has to turn towards the left to avoid a hole on the north side of the east approach, which has the effect to leave the wagon near the south side. At the railroad track the fill is from seven to ten feet high. The approach on the east extends out eleven feet and on the west about fourteen feet. The planks on the track are pine and the south end was broken. The wagon wheel j umped off the rail about one foot down where the end of the plank is broken off. The sign-posts are west of the track, one south and the other north of the roadway. The sign extended over the road and was from twelve to sixteen feet long. A person cannot see the west approach from
J. D. L. Sparks, testified: “ I know the crossing, and travel over it often. The road approached the railroad track in a curve from the east. The west approach is steep and narrow, and is further south than the east approach. Crossing from the east, one turns to the left. On reaching the railroad track of railroad the approach is in a curve. East approach is steep on the north side, and the west approach on the south side. Coming up, in a curve from the east, to avoid the steep place on the north side, with your team, the wagon is left near the south side. On reaching the track from the east, must turn north as far as team can go, in order to land safely on the west approach. Can’t see the west approach, from the east, till the track is reached. A person driving in a covered wagon would have his view obstructed. Coming up the east approach, if you follow the direction given by the planks at the rails, you don’t land on safe ground on the west approach.”
On re-direct examination the witness said: “To get on to the west approach, one must go diagonally over the plank. To one knowing the track, and the necessity of keeping the team to the north of the track, it is no trouble to cross. Plank at crossing is about twelve feet long. One could cross anywhere on the plank. The bushes on the south side of the west approach are boxelder, briar, hazel, etc.”
James E. Young testified : “I am acquainted with the crossing in question, have known it since 1867, and knew it in 1883. The public road crosses the railroad, at an angle from southeast to northwest. The approach is graded up several feet, and curves on each side of railroad track. On the west side is straight. On either side of the east approach were excavations. Don’t know that it interfered with travel on east
Re-direct examination: “I have passed over it quite often. A stranger not familiar with it is liable to go too far south. There is no danger if the west approach is known. There is no obstacle in making the approach good on both sides of the railroad. There is no danger at all on east approach, the only danger is in coming on the west apqjroach. I knew the road before the railroad was built, it was a plain bottom road.”
The cross-examination of these witnesses was substantially as their examination in chief, except they stated that if the wagon had been kept in the traveled track the accident would not have happened, but they also said that, to keep the wagon in the traveled track, the team must be pulled out of it, on account of the turn. They also said the traveled track could be kept by one who was acquainted with the crossing.
When we consider that Mrs. Brown had a right to rely upon the safety of the crossing, and that defendant had not performed its duty in constructing and maintaining it, I am unable to see anything in the foregoing showing a want of due care on her part. She could not see the condition or location of the west approach while she was driving1 up the east approach. “In coming up from the east one does not see the danger until he gets upon the railroad track, and if one is not acquainted with its condition he is liable to go off,” is the language of one of the witnesses, which is in substance stated by all and .contradicted by none.
To my mind the evidence for plaintiff makes out a
The instructions are further objected to on the ground that they submitted to the jury the question whether the crossing was “reasonably safe and convenient for public travel.” The primary meaning of the word convenient is fit, suitable, or adapted to use, and with this meaning it was not improper to use it in connection with the word safe.
Objection is made to plaintiff’s third instruction, in that it does not limit the period of plaintiff’s loss of service and society to three months, it being contended that the petition only claimed damages for a loss during that period. If we should concede that the petition is fairly subject to the interpretation given it by counsel,
The further point is made against the instruction, in that it permitted a recovery for “ costs of medicines,” when the petition only charged “for nursing and medical attention.” If we should concede this was a variance at all, the remarks made as to the other objection are equally applicable to this.
The instruction given by the court of its own motion as to damages is a copy of that offered by defendant, except that the court added, after the words, “pecuniary loss to the plaintiff,” the words, “arising from his loss of her services or society.” We can see no objection to such addition. It only makes clear what must or ought to have been intended by that offered by defendant.
As to the contention regarding the amount of the pecuniary loss to plaintiff for the loss of his wife’s society, there is, as is said by counsel for plaintiff, no exact standard by which to measure the value of a wife’s society. The amount to be recovered must be left to the enlightened judgment of the jury, who must, under the evidence before them, fix upon a reasonable sum.
Other points presented by defendant’s counsel have been examined, but we have found nothing justifying a reversal of the cause. The evidence justifies the verdict.'
• The judgment, with the concurrence of the other judges, is affirmed.
Rehearing
rehearing of this cause, it is argued that though contributory negligence was not pleaded, and though plaintiff ’ s evidence did not clearly show contributory negligence on the part of his wife, so as to justify the court in taking the case from the jury under the authority of the Milburn case, 86 Mo. 104; yet if the evidence on the part, of plaintiff tended to show such contributory negligence, it became an issue which should have been submitted to the jury.
This proposition has been presented by the distinguished counsel for the defendant' with ability and evident earnestness, but, in my view, we are relieved from passing on the question by the fact that there is no evidence in the case on the part of plaintiff (and it is conceded that such evidence must appear in the testimony for plaintiff), either proving or tending to prove, contributory negligence.
Dr. McConnell, on cross-examination, stated'that he was familiar with the crossing and found no difficulty in driving over in a buggy, day or night; that he had never driven a wagon over, and that a wagon, being longer-coupled, would be more difficult to get over. He added, “I think I. could drive,a wagon over it, but I never tried to do it.”
Another witness stated that if a person was well acquainted with the crossing he could drive an ordinary farm-wagon over safely, but if he was a. stranger he thought he could not. “Buggies and short-coupled vehicles are not so dangerous.” Plaintiff’s witnesses unite .in saying, that the crossing was only safe for those who were acquainted with its peculiar condition and that one not acquainted with it is apt to go off, or turn over, or get hurt, or some equivalent expression. While they say there is no danger if you keep. the wagon in the track, they, at the same time, say, one unfamiliar with the crossing is not apt to do this, as in order to do so,
But, as I discussed the evidence somewhat in detail in the original opinion, I will not pursue the matter further now, and am in favor of affirming the judgment.
Concurrence Opinion
Concurring.—We place ■our concurrence in affirming the judgment of the •circuit court more particularly upon the ground, that the ■question raised on the rehearing of this case does not properly arise on the' record.
It is conceded that, under the decisions of the Supreme Court, by which we are bound absolutely, it devolved upon the defendant to plead any contributory negligence of the plaintiff in order to raise such issue. Without such plea there could logically be ho such issue of fact for. the jury to pass upon. Matters not put ■ in issue by the pleadings should not be submitted to Ahe jury.
The answer not having tendered such issue,'and the •evidence not being such as to justify the trial' court in taking the case from the j ury on the ground that plaintiff ’ s " evidence showed, clearly contributory negligence on the -part of plaintiff’s wife, it certainly could not devolve •on the plaintiff in framing his instructions to submit such issue tó the jury. Instructions must be drawn in '•conformity -with the issues. ‘ 1
The plaintiff’s instructions properly presented the questions of fact predicated in the pleadings. In all of them the jury were told, that if they found the facts, ' constitutive of the cause of action, alleged in the petition, to exist, and that “in consequence, thereof” and “whereby she was injured,” they should find for the • plaintiff. Under the issue of a general denial this is
The judgment is affirmed.
