149 Mo. 609 | Mo. | 1899
Action for $25,000 damages, recovery for $11,400. Plaintiff was acting as expressman of the
After making the usual prefatory allegations, the petition, in charging the injury producing negligence, states: “That while plaintiff was on such car, in the exercise of due •care, in charge of such express matter as aforesaid, and being conveyed by defendant over its said line, he was at a point on a railroad bridge over Big Peno creek in Pike county,Missouri, by reason of the car in which he was riding falling through ■said bridge on account of the defects in, and insufficiency of said bridge, wounded and injured in the head, face, and eyes. That the said bridge where he was injured was negligently and •carelessly and defectively made and maintained, and was at said time in an unsafe and dangerous condition, which said •condition was known to the defendant or could have been so known by the exercise of ordinary care, and that his injuries as above set out were caused by the negligence and carelessness of defendant, its agents and servants, in constructing and maintaining such defective,insufficient,unsafe, and dangerous bridge, and in running its said train upon same when in said unsafe and dangerous condition, whereby said bridge gave way and said car in which plaintiff was .being conveyed as the same passed over said bridge was caused to fall through the same to the bottom of said creek, thereby injuring plaintiff as .aforesaid.”
The answer pleads, in substance, a general denial, and then avers that plaintiff was defendant’s servant, and under its
“Defendant says that it was impossible for it or any of its agents, servants or employees either in charge of said train or those to whom was intrusted the duty of keeping and maintaining such bridge and its approach in -a safe condition to have foreseen the heavy and unusual rainfall and the flood incident to same which occurred the night previous to such
“Defendant therefore says that said accident was an inevitable one, and was caused by the act of God, and the same together with its results were such occurrences which were beyond the power of human ingenuity and ability to either foresee or prevent and defendant is not liable for said accident or any consequences or results following same nor for any damage which plaintiff may have sustained in consequence of same, and now having fully answered, defendant asks to be discharged with'its costs.”
Eeply, a general denial. On this state of the pleadings the parties went to trial.
The evidence in substance showed this state of facts:
A bridge had been built across Big Peno creek in 1872. It had been swept out a number of times, so far as the “bents” were concerned. There had been a very high rise in Peno in 1875, and prior to that as well as subsequent thereto. It was characterized by the witnesses as a “bad stream;” a “very ■dangerous stream.”
The bridge in question had been rebuilt in December, 1891, after numerous washouts had occurred, and thus given frequent warnings of the necessity for a more substantial bridge, and at the time of the accident had stood some two years and four months without a washout or any of the “bents” which supported the bridge, being swept away.
The superstructure was 249 feet in length from the stone abutment on one shore to the other shore, and consists of,
Notwithstanding the creek whén in a turbulent mood had frequently swept out the “bents,” the stone piers which were built upon the solid rock, which was some six to ten feet below the gravelly surface of the creek bottom, although some of them stood in the main channel of the creek and had been subjected to many previous storms and consequent floods had never yet yielded' to their force, but with undiminished strength had withstood the last storm, which resulted in the litigated injury. Several witnesses stated that stone piers built on the solid rock was the only safe foundation on which to build the bridge at the point indicated, though one of the witnesses admitted that he thought a bridge in the locality designated by the pleadings would be safe provided it were-built upon “bents,” which rested on iron-shod piles, which were driven through the gravel, etc., into the solid rock, a depth of from six to twelve inches. None of the witnesses testified that the bridge where it was built merely on “bents”' as the one in the present instance was, was safe. It is said,, however, by defendant’s counsel, and repeated, that “others of plaintiff’s own witnesses, notably H. F. Tepper, who knew the creek and had worked at that identical bridge crossing,, testified that the bent bridge was the safest one that could
There is another statement made by defendant’s counsel requiring correction; it is in regard to what Bishop testified to. Bishop was being cross-examined as to the condition of the bent work, and thereupon the following colloquy ensued:
“Q. Did you examine the foundation of them — of the bent work? A. Yes,„sir.
“Q. How deep did you go? A. Well, there was one washed away until they got down to the mud-sill and we found the mud-sills and the sills reasonably sound because they were under water, that is, they were kept damp, and timber won’t rot under water.”
Defendant’s version makes the witness, Bishop, say: “I examined the mud-sills and found them reasonably safe.”
John Ford, seventy-six years of age, and who owned a farm and who lived in about a mile or two of the bridge for forty years, asked to give in his own language the character of the Big Peno, said: “Well, I will just have to give it just as I did to Barrett when he first came here with the road. I told him that when it got its Sunday’s on, he would see that it would tear the whole bridge out and so it did, when it got its Sunday’s on, it did tear it out. It is liable to do that any time.” That it was a stream subject to overflow. “When it gets up it is* mighty rapid, mighty rapid,” “I think the creek is from eight to nine mile long.”
Tepper, a carpenter, who had helped rebuild the bridge in 1891, and who had lived in the neighborhood of Peno creek for twenty-nine years, testifying said: “I have noticed that stream, and whenever there is a pretty good rain, a rain like that we had that night, it always does some mischief, always washed out something.” He further stated that the stream was habitually subject to overflow, but that it took a hard rain to produce that condition, and then the stream is very swift, and that had been its character ever since he had
B. E. Eord, a farmer, lived about one-half a mile from the bridge, and had lived there about thirty-five years before the road was built; he owned a farm on both sides of the creek, and stated that it gave him a good deal of trouble sometimes; that after very heavy rains there was generally a washout. Asked if that had always been the character of that stream, he replied, not so much as in later years; along forty years ago, it was not so bad as it is now. That the stream on the ninth of May, was tolerably high, past fording, and that it rained again about midnight. He went out early on the morning of the tenth of May, about five o’clock, to look after some stock that had got water-bound on the island the evening before, and could not get across. This witness saw that the bent on the south or St. Louis end of the bridge was out before he got within 200 yards of it, and that his fence, which was not washed out the evenilig before, was washed out during the night, and that there was no water where the bent had washed out, only a little hole of water; that the creek there in its channel was a little full fording for a horse, and that the bent washed out was about 300 yards below, near witness’ field and opposite the old tank, and that it was the custom of defendant company after a heavy rain, to examine the locality and send section hands out there to stop the train either at the old tank, or at the bridge, and walk up and examine the bridge; that when the creek has been up, the section hands can see very plainly before they get there, the condition of affairs, and that the wreck occurred about 7:30 in the morning.
James M. Eord, who lived close beside his father, B. E. Eord, also testified to the hard rains during the night, and that his fences not washed away the evening before, had washed away during the night; and the fact that his fences had been washed away could be seen from the railroad between
"Williams, an experienced railroad bridge builder, seventy-two and one-half years old, after relating the great length of his experience in that capacity, in speaking about the present bridge and former bridges, stated: “When it was first built, there were posts put in the ground; holes dug down to the rock and posts put in these holes and then the holes filled up and braced with heavy braces. They stood there and I think that some of them are there yet. They were there at the time I was on the road, some of them, not all. Some washed out. • The gravel washed out and the bent went out; then there were other bents put up in other places and put onto ties — the sills of the bents were put on the ties or blocks or whatever could be got at the time; always put up in a hurry to get the train over, and they were put upon these blocks on top of the sand or gravel, not on the rock. Well, of course they would not stay there very long and did not. They washed out again. There are streams that come together just a little above the bridge and where they come together, they come in such a -shape that it throws the water off against the bent, away from the bridge, and it flowed around and washed out along there quite a large place on the rock pier that is below it, on the north end of the bridge. Well, there is a short span there put in, a beam bridge. The other end of that bridge stood on piles. Well, as the water washed around here, around in that open place, it threw the water right over on these bents and of course they could not stand a great while on that account. They would never put up a permanent pier there. They would put up just a temporary bent and let it stand just as long as it would stand and when it washed out
Locking, shown to be an expert witness, after having heard other witnesses testify as to the character of the bridge across Peno, and the nature of the surroundings and locality, testified that there were only two safe ways to build the bridge over Peno; first, to dig down to the solid rock and build stone abutments upon the rock and then put in a long span from one abutment to the other to carry off all the water, etc.; this would be the preferable plan; the other was to excavate down to the bed rock, drill holes in that, then bore a hole through the sills, insert large iron bolts into the sills and down into the rock, securely fasten the bolts in the rock and then fasten the upper part of the bolts where they came through on the upper side of the sill, etc., that is anchoring the bent to the bed rock.
Of the character of defendant’s bridge over Peno, there was an entire unanimity of opinion among those experienced in such matters, that it was not a safe bridge for that locality.
Defendant was not able, indeed, did not attempt to produce a witness to the contrary.
Buckwald, roadmaster of defendant, after testifying as to the way in which the bridge was constructed, testified: “Between 4z and 6 o’clock in the afternoon of May 9th, we had a very heavy rain accompanied by hail, a severe storm, in fact as severe a storm as I had ever seen in that part of the country. I was at the office in Prankford and had ordered an engine to go south and do some work. That came to Frankford about between the hours of six and seven and I got onto that engine and went with them to inspect these bridges. When we got to Peno we found it up very high. We stopped and looked at it and saw the bridge all in good shape and we proceeded to the next high bridge just this side of McCune, and we ran slowly over it and found it all in good order and by this time it had stopped raining and we went south as far as Whiteside, where we found it had not rained a drop. The soil in fact was dusty. Whiteside is afyout thirty-five miles below this Big
Buckwald further testified that he had never seen Peno so high as it was that afternoon, when they passed over it about I o’clock. He admitted that he could have seen that the bent was out the next morning, and in answer to a question why he
Further questions were put to, and answered by Buckwald, as follows:
“Q. You didn’t look as you went down from the bridge ?' A. We didn’t have time to look. ,
“Q. As you approached the place where the bent was out,, did you observe or look to see if the bent was out ? A. We were going just fast enough not to give me time to think of anything of that kind; it was too late.
“Q. Suppose you had stopped your engine in the morning and walked over it, do you think you could have discovered the bent was out? A. Yes, sir.
“Q. You were in a hurry and supposed the bridge was. all right, and went right on? A. Yes, sir.”
He further admitted that it was a part of his business and duty as roadmaster to see that the bridge was in proper condition at the time the train went on it, and to this point other witnesses bore testimony.
Respecting the nature, extent and permanency of plaintiff’s wounds, the testimony of Dr. Henry A. Geitz, shows these things to be true: “Went directly to Mr. Cobb’s house-where we found him in bed. Conscious, but found a gash in his forehead and the brain matter oozing. We found a fracture which was a compound fracture (that means it is cut through the skin). There was a fracture in which we found particles of dirt and things of that sort. There was a rip or crack in the bone that extended back over, through a portion of the temporal bone in the back, and you could pass your hand, the fingers through the fracture, through the brain in back of the eye on the inner side of the eye and touch the
Dr. E. O. Hayes, testifying on the same subject, stated: “It was a very grave injury to deal with. It partly destroyed one eye, so far as its use is concerned, which may have to be removed to preserve the other. The effect of the injury upon his general condition is such that I do not think that he is fit or is ever going to be fit for any employment that requires either mental or physical effort. Either will bring on undue excitement and increase circulation and the parts there are in such a condition that they won’t bear the tension of the blood vessels, and headache and discomfort will result. The injury to the brain is never repaired in kind. The repair of nature is always done with a lower order of tissue and is always contracting and is liable to bring on epilepsy and ultimately insanity. We don’t know. That is about all I can tell you. Mr. Cobb was under the care of Dr. Gleason and myself six or eight weeks.”
The two grounds of negligence thus referred to and charged against the defendant, are these:
Eirst, an unsafe bridge; second, running its train thereon knowing it to be unsafe, or when by the exercise of ordinary care, it could have discovered such unsafe condition.
So that the question thus presented may be compressed into, and formulated in, five words: Did defendant exercise ordinary care?
Touching this subject, and responding to this question, a recent text-book of approved authority, make the following quotation and observation: “What is the precise legal intent of the term ‘ordinary care’ must, in the nature of things, depend upon the circumstances of each individual case. It is a
• Pursuing the same general line of thought it is elsewhere said: “The degree of vigilance, which the law exacts, by the requirement of ordinary care, must vary with the probable consequences of negligence, and also with the command of means, to avoid injuring others, possessed by the person on whom the obligation is imposed.......Under some circumstances a very high degree of vigilance is demanded by the requirement of ordinary care. Where the consquence of negligence will probably be serious injury to others, and where the means of avoiding the infliction of injury upon others are completely within the party’s power, ordinary care requires almost the utmost degree of human vigilance and foresight.” [Kelsey v. Barney, 2 Kernan loc. cit. 429.]
Inotherwords (paraphrasing the authorities quoted),itis the exigency of the situation, which acting like heat’s action on the mercury in the thermometer, determines to what degree frudence must rise in order to,reach the market of ordinary ca/re.
And the fact, if it was one, that the storm had been unprecedented, affords defendant no- excuse, because if a hard rain storm would .sweep away the bents, a fortiori would one more severe. And the evidence unmistakably shows that had stone piers been used, defendant would have given no cause for the present litigation. The unusual severity of the storm in this instance, instead of furnishing an excuse to defendant, should rather have stuck the spur of vigilance into the flank of its apprehension.
These views dispose of the defendant’s demurrer to the evidence in the same way as disposed of by the lower court. That demurrer had no foundation on which to rest, any more than had that portion of defendant’s bridge from under which the bent had been swept away. I am not unmindful that
The cases are not at all parallel, for here the fact that “Big Peno” sometimes donned “its Sunday’s” had given that creek a well deserved reputation for being dangerous, a reputation that the law will, in the circumstances stated, presume defendant cognizant of, because its duty required it to take cognizance of that matter,, and will hold it liable for any lack of that watchful care necessitated by the dangers incident to the situation. In this connection, it is easy to observe that the case just considered is the antipode of one that I am glad to see that counsel for plaintiff have had the good sense as well as good taste, though in their favor, not to cite, to wit: Fuchs v. St. Louis, 133 Mo. 168. That case has not been overruled. In that case this court by a majority of one, solemnly proclaimed to a wondering world that the city of St. Louis was responsible in damages for negligence, because it did not anticipate and provide against an explosion in a sewer; something which had never been known to occur before!! Under the ruling in that case defendant would have been responsible even if “Big Peno” had “got its Sunday’s on” for the first time in the history of creek and country. Nay mor§, under the ruling in that case a corporation would be held responsible if injury resulted from its railroad track being swept away by a torrent suddenly bursting forth amid the desert sands of the Great Sahara!
Having dealt with the chief feature and solar plexus of this cause, I will now advert to matters of lesser importance involved in this record.
There was no objection made nor exception saved as to the general character of plaintiff’s testimony in this regard, nor was he cross-examined on the subject.
In such circumstances I do not believe that defendant was in a condition to object to the general nature of the instruction in this particular. In Duke v. Railroad, 99 Mo. 347, there was no evidence whatever as to the value of the medical services, nor as to the expenditure of a single' dollar in and about that matter, and it was rightly held that an instruction based on such services, had nothing in the evidence to support it, and was consequently erroneous.
In this case, however, there was general evidence on the point in question, and it doubtless would have been made more specific had objection been raised; but it can not be said that there was no evidence on the subject. In Murray v. Railroad, 101 Mo. 236, it was ruled that evidence was not necessary as to the expense for “nursing,” as the jury could tell from the length of time plaintiff was in bed, and from their own knowledge as to the value of such services, what they were worth. This case I do not regard as well considered, and it should not be followed.
In Smith v. Railroad, 108 Mo. 243, it was decided that no evidence was given as to the value or charges of the physicians employed and the judgment was reversed on the ground of such failure.
I am unable to see why evidence is any more necessary as to the value of physician’s services than as to those of nurses, nor why a jury could any better, without evidence, determine
Locking, though unacquainted with the locus in quo, still was competent to testify as an expert from hearing other witnesses testify who were thus acquainted. [State v. Meyers, 99 Mo. loc. cit 121, and cases cited.]
The result of these views is that the judgment should be affirmed.