152 Mo. 222 | Mo. | 1899
The plaintiff sues the defendant for five thousand dollars damages under sections 4426 and 442.7,
This is the second suit for the same grievance the plaintiff has brought. On the 17th of October, 1895, and within six months after the death, the plaintiff instituted suit against defendant for the recovery of damages resulting from the accident. That case resulted in a nonsuit at the May term of the Henry county circuit court. Afterwards on the 26 th of May, 1896, more than six months after the death, but within a year after the nonsuit of the prior case, this action was begun. The petition is in two counts, which are alike except that the first count alleges that her husband was an employee of the defendant, the Kansas City, Clinton and Springfield Eailway Company, and the second count alleges that her husband was an employee of the Kansas City, Eort Scott and Memphis Eailway Company, and that at the time of the accident the latter company had a traffic arrangement with the former company, by which the latter company ran its car’s over the tracks of the former company, and was so doing at the time of the accident.
The answer is a general denial, a plea of assumption of risk, and of contributory negligence on the part of the deceased or his fellow servants.
At the trial it appeared from the testimony introduced by the plaintiff that the freight train, upon the engine of which the deceased was fireman, left Springfield upon the night of July 8th, 1895, and when it reached a point about a mile
At the close of plaintiff’s case the defendant demurred to the evidence and the court sustained the demurrer. Thereupon the plaintiff asked the court to open the case and allow her to put defendant’s section foreman on the stand, he having been subpoenaed by the plaintiff, and offered to prove by him that it was his duty to inspect and keep in repair the fences, and that the last inspection of this fence was on the Saturday preceding the Tuesday on which the accident occurred. The court denied the application, and the jury, by direction of the court, returned a verdict for defendant. After proper steps the plaintiff appealed to this court, and here assigns as error the action of the court in directing a verdict for defendant and in refusing to open the case as aforesaid.
There was sufficient evidence to establish, prima facie, the allegation of the petition that, at the time of his death, the deceased was employed, as a fireman, by the defendant company.
n.
There is no substantial disagreement between counsel as to the general principles of law underlying the main issue in the case. It is conceded that it is the duty of the master to furnish the servant safe and suitable appliances for the work; to furnish a safe track for the cars to run over; to erect and maintain a fence on each side of its right of way; to inspect and keep in repair its track, machinery, appliances and fences, and that the master is liable for injuries received by the servant which were caused by a non-compliance by the master with these duties of the master, if the master actually knew of the defects or by the exercise of ordinary care could have ascertained such defects.
In the application of these principles to the facts disclosed by the evidence in the case at bar, counsel are disagreed. The plaintiff contends that the fact that the plank was shown to have been off of the fence as early as ten o’clock on Monday morning, July 8th; that there was 'thereby left a space of from twenty-eight to thirty-six inches between the top and next to the top wire of the fence; that the accident did not occur until about one o’clock on the morning of Tuesday, July 9th, or fifteen hours after it was shown the plank was off of the fence; that the section house was at Hartwell, only a mile distant from the place of the accident, and that an inspection at any time during Monday would have disclosed the fact that the plank was off of the fence, and that it could have been easily replaced in five minutes; that the accident was
On the contrary defendant contends that the fence was not down, but only one plank was off of it; that it had not' been in this condition more than fifteen hours before the accident; that otherwise the fence was in compliance with the law; that in the nature and uses and liability to get out of order, there is a great difference between a track and engine and other appliances for running a train on the one hand and a fence on the other hand — that as to the first a more rigid and frequent inspection is necessary than is or ought to be required of the other; that no reasonable man would require a daily inspection of all the fences on both sides of the right of way of the railroad, for human experience proves that such watchfulness is not at all necessary, and that the eases are not so frequent where accidents have occurred on railroads from stock getting on the track, as from the track getting out of order in consequence of the strain on it caused by heavy trains passing over it at high rate of speed, and hence a daily inspection of the fences is not required of a railroad company and an accident occurring from one plank having been off a fence for fifteen hours before the accident, does not make out a case where reasonable men might fairly differ on the ques
The question of law is thus fairly and squarely presented.
Counsel for plaintiff relies, chiefly, upon Foster v. Railroad, 44 Mo. App. 11, which was an action under section 809, R. S. 1819, to recover double damages for the killing of a cow, and in which it appeared that one or more whole panels of the cross fence which connected the lateral fences with the cattle-guard on the track were down, and had been for one day before the accident. Rombauer, delivering the opinion of that court, quoted from the decision of this court in Townsley v. Railroad, 89 Mo. 31, in which Henry, C. J., said: “It is not the law that if a storm prostrates a railroad fence, or malicious persons tear it down, or by accident of any kind it is demolished, the company is liable under the double-damage act for injury to animals straying upon the road at that point, unless it had notice of the condition of the fence, or it had remained so long out, of repair, that want of knowledge could be imputed to the negligence of the company,” and then added, “If, therefore, in the case at bar, no more had been shown than that this panel of fence was out of repair, where the cow got through it and upon the track, the defendant’s demurrer to the evidence would have been well taken. But in view of the fact, that this part of the fence was down for at least one day prior to that time, that the damage to the fence was of a character which could have been easily repaired, and that the place seems to have been in close proximity to a station, we are not prepared to say that the court erred in submitting the question to the consideration of the jury by an instruction given on that subject of its own motion.”
Counsel invokes the doctrine here announced, insists that the Foster case and the case at bar are parallel and urges that “the rule should be at least as strict in the case of a man killed as in the case of a cow.”
The decisions in this State have fixed no specified time within which known defects must be repaired, and no time within which the knowledge of defendant will be imputed. The time is always stated to be a “reasonable time.” What
In Clardy v. Railroad, 73 Mo. 576, the judgment against the defendant was reversed because it did not appear for how long a time before the accident the fence was down or defective. In Fitterling v. Railroad, 79 Mo. l. c. 508, the judgment against the company was reversed and this court said the demurrer to the evidence should have been sustained because it did not appear that the defendant knew of the defect in the fence and that the defect did not exist on the day before the night when the accident occurred.
In Chubbuck v. Railroad, 77 Mo. 591, the judgment against the defendant was reversed and this court said the demurrer to the evidence should have been sustained because the case was predicated upon a defective cattle-guard, and it was not shown how long the defect had existed, notwithstanding “the fence had been down all summer.”
In Maberry v. Railroad, 83 Mo. 667, it appeared that a tree had fallen across the fence breaking it down; that while the fallen tree remained on the fence it would turn stock, but the tree burned up, and left an open space for the passage of stock, which was the condition for one or two weeks before the accident, and this was held sufficient to warrant a recovery against the defendant.
In King v. Railroad, 90 Mo. 520, it appeared that the top plank of the fence had been off at two different places for some time, but that at a “new break, which showed it. had just been made, there was found to be horse hair upon the splinters of the broken plank and tracks all along, between this break and the railroad;” and also that the fence had been inspected the day before the accident and there was no break in the fence at that time where this fresh break was found. The judgment for plaintiff was reversed.
In Laney v. Railroad, 83 Mo. l. c. 471, it appeared that the latch on the gate in the fence was repaired a week before the accident and it was not noticed to be out of repair for a week after the accident. The circuit court sustained a demurrer to the evidence and that judgment was affirmed by this court.
In Vinyard v. Railroad, 80 Mo. 92, the fact appeared that two of the upper planks of the fence had been sawed off at one end, about two months before the accident, but had been repaired “by nailing a plank perpendicular with and to the post and nailing the ends of the sawed planks to it,” but that one or two days before the accident this panel of the fence was down. A judgment for the defendant was sustained.
Thus we see that where the defect had existed only one or two days the defendant was held not liable; that where it existed a week or more the defendant was held liable, and where the defect was repaired a week before the accident and the defect was not noticed for a week after the accident the action of the circuit court in sustaining a demurrer to the evidence was affirmed by this court.
It can not, therefore, be said that this court has ever held that a defect in a fence that has existed for only one day will.
It follows that the judgment of the circuit court must be affirmed. It is so ordered.