66 Mo. App. 260 | Mo. Ct. App. | 1896
Lead Opinion
The petition alleges that the plaintiff is the widow of John Wheeler, deceased, who lost his life on account of injuries received by him through the negligence of the defendant. The case presented by the record may be stated to be something like this:
The defendant owns a large body of uninclosed bottom land, situate near the city of St. Joseph and bordering on the Missouri river. The defendant’s stock
In January, 1894, the defendant constructed a barbed wire fence, commencing at a point on the Packing House road, west of the ditch about one hundred and fifty yards, and from thence running north, nearly parallel with the ditch, to the Missouri river. This fence closed the St. Joseph and Lake Contrary road at the point where it crossed the same. The defendant, desiring also to bar the entry of the public by the bridge, upon that part of their inclosed lands lying between the wire fence and the ditch, at about 3 o’clock in the afternoon of the day the fence had been projected across said road, erected a barricade across the north end of the bridge. The evidence is conflicting as -to the exact time of day when it was completed, and as to the structure and materials of the same. It, however, appears from the undisputed testimony that the wire fence and the barricade were constructed under the direc- • tion and supervision of Mr. Siecks, the superintendent of defendant’s stock yards; that when the
One Brunnell, a witness for defendant, testified tbat betwixt 4 and 5 o’clock in tbe evening after tbe barricade bad been erected, be came over tbe road from tbe direction of St. Joseph, and on arriving at tbe bridge be discovered tbe defendant’s barricade in front of tbe bridge; tbat be lifted tbe posts out of their boles and set them aside. He testified further tbat there was .a plank missing near tbe center of tbe bridge and tbat be replaced it with tbe one be took from tbe barricade, after which be drove across the bridge, leaving tbe barricade down. There was other testimony to tbe effect tbat tbe plank was removed from near tbe south end of tbe bridge. There was also evidence adduced tending to prove tbat tbe barricade was standing between sundown and dark. Tbe defendant’s general.manager and superintendent both testified tbat they saw tbe barricade standing as late perhaps as 6 o’clock tbat evening. Tbe latter testified tbat be remained in tbe vicinity of tbe barricade until 6 o’clock in tbe evening and during tbat time could have seen anyone crossing tbe bridge, but tbat no one did cross it. Tbe men who put up tbe barricade were engaged in fence making in tbat vicinity until half past 5 or 6 o’clock of tbat evening.
It further appears tbat on tbe day the barricade was put up tbe deceased and one Parker, who resided near Lake Contrary, each went to St. Joseph with a two-horse wagon and returning by tbe Lake Contrary road reached tbe bridge shortly after dark. Tbe deceased was in advance and drove onto tbe bridge. Parker’s team followed close behind. Tbe witness Parker testified tbat when tbe team of deceased was
The plaintiff had judgment in the court below and the defendant has appealed.
The first question which we are required to determine is whether the evidence, as we have stated it to be, was sufficient to justify the submission of the case to the jury. Unless the evidence shows, first, the existence of aduty on the part of defendant to protect the deceased from the injury of which plaintiff complains; second, a failure by defendant to perform that duty; and, third, an injury to deceased from such failure of the defendant — the plaintiff must fail in her action. To constitute actionable negligence, these three ingredients must, be shown to coexist.
It is pertinent to inquire whether the deceased was. a trespasser, or a licensee, at the time he attempted to cross the bridge. He was certainly one or the other. If the deceased had any right to use the defendant’s, property, it was the same as that which the public had. The latter used the defendant’s property for several years without objection. This, while not amounting-to a dedication or giving the public an easement, did amount to a license. A license may be created by
Since it is contended by the defendant in the present case that the license was revoked, the burden is upon it to show that fact. Blunt v. Barrett, 54 N. Y. (S. C.) 548. Does the evidence tend to prove a revocation?
The inclosure of outlying land with a lawful fence will, under ordinary circumstances, be sufficient to amount to a revocation. And no reason is seen why the barricading of the approach to a bridge over a ditch or stream running through inclosed lands may not be a sufficient revocation of the license to use such bridge. The law accords to everyone the right to use his property, subject only to the limitation that he so use it as not to inflict injury upon others. This principle finds expression in the maxim: uSic utere tuo ut alienum nonlaedasP There is a duty, therefore, resting upon all persons to so use their property that in such use they may not injure others in the exercise of their rights. The duty thus imposed extends only to the recognizing and observing such rights. If no rights exist, there is no duty imposed. Whenever one undertakes to inclose his property under circumstances that render it dangerous for those likely to pass over it, and which the former must anticipate will incur injury by it, it becomes his duty, if such dangerous means must be employed to accomplish the purpose, to give some
The application of this principle is well illustrated by those cases where it has been held that a landowner, who has permitted the public to travel in vehicles and otherwise over his uninclosed lands, until there was a .well defined way across the land, indicating that the public were in the habit of passing over the same, has the right to forbid the further use of the way and to that end may fence the land; but he must do so in a manner not calculated to injure those who attempt to continue to use the way, without any knowledge of such revocation, or of the barrier erected. And where the landowner stretched a barbed wire across such way, without anything to warn the traveler of its existence, he was not in discharge of the duty which he owed to the public and was guilty of negligence. Morrow v. Sweeney, 10 Ind. App. 626; Carscaddon v. Mills, supra. And so it was ruled in the cases just cited that there could be no doubt of liability, if it is shown that the obstruction is placed in the way of the licensor-purposely to keep the licensee from entering the premises.
And there are numerous cases which might be cited holding that where the owner of ground digs a pit, or erects other dangerous obstructions at a place where it is probable that persons or animals may go . and become injured, without using proper care to guard the same, there is liability and the owner must respond in damages for any injury incurred by such negligence.
Did the defendant discharge this duty? If it did, there is no liability; and if it did not, there is.
The evidence shows that the defendant erected a barricade across the north end of the bridge on the day of the accident. When the barricade was erected the defendant had discharged its duty to the public, provided, of course, such barricade was sufficient to warn and protect travelers against the danger to be encountered by entering upon the bridge in the condition it then was. And upon principle we think that if the defendant placed a proper barricade across the approach to the bridge, and it was afterward removed by a wrongdoer, the defendant was not liable for the consequences of such removal (Ball v. Independence, 41 Mo. App. 469; Dooly v. Town of Sullivan, 11 N. W. Rep. (Ind.) 816; Doherty v. Waltham, 4 Gray, 596; Mullan v. Rutland, 55 Vt. 77; Levister v. Mayor, 47 N. Y. 341), unless it had notice of such removal a sufficient length of time before the deceased drove onto the bridge to have restored such barricade or placed a watchman there.
The plaintiff’s first instruction telling the jury that it was the duty of defendant to maintain the barricade for such time as would be reasonable to notify persons traveling the said road of the condition of the bridge, was, we think, a correct expression of the law, and especially when read in connection with her fourth and the defendant’s fifth. The two latter told the jury, in effect, that the defendant was relieved of the duty to maintain the barricade, after the removal thereof, until it had notice of such removal. These instructions engrafted an exception on the rule declared by plaintiff’s first instruction, and when they are all considered together, they were sufficiently clear and harmonious in expression to intelligently guide the minds of the jury in passing upon the issues of fact to be by them determined.
But the plaintiff’s fourth and fifth instructions told the jury that if the defendant’s agents, servants, and employees knew of the removal of the fence in time to have either replaced it, or in time to have placed a guard there, such knowledge was that of the defendant. This was error. There is no rule of law to which our attention has been called that would make the knowledge of the mere, employees and servants of the defendant, engaged in building the wire fence, that the barricade had been removed, knowledge of the defendant. It may well have been that the jury understood from this instruction that the fence makers, working in the vicinity under the direction of the defendant’s superintendent, knew of the removal of the barricade and that their knowledge was that of the defendant. But their knowledge, inde
It results that the judgment must be affirmed.
Rehearing
ON MOTION YOB BEHEABING-.
I. It is true that the plaintiff’s fourth and fifth instructions use the words agents, servants, and employees, and that the word “officer” is nowhere to be found therein. The evidence tends to prove that the defendant’s general manager and also its superintendent, the latter of whom had charge of the construction of the wire fence and the barricade under the orders of the former, had knowledge of the fact that the barricade had been thrown down prior to the time the injury happened to plaintiff’s husband. The rule in reference to imputing knowledge of' the agent to the principal is that which is universally adopted, confining it to knowledge acquired at a time when he was discharging the duties of his agency. Wood v. Railroad, 519 and 517. Notice of facts to an agent is constructive notice to the principal himself, when it arises from, or is at the time connected with, the subject of the agency. Meehem on Agency, sec. 778; Story on Agency, sec. 140; Wheeler v. McGinn,
The line of demarcation between the. relation of principal and agent and that of master and servant is exceedingly difficult to define. They are essentially similar, the difference being-in degree rather than kind.. Mechem on Agency, sec. 2; Wharton on' Agency, sec. 1; Parsons on Contracts, 101; Wood on Master and Servant, sec. 1. Nor does it appear that in our legal-nomenclature the term employee has a greater or wider significance than that of servant.
While the knowledge of the fence builders, who were mere laborers, or servants and employees working under the direction of defendant’s superintendent, could not, under the circumstances of the case, be imputed to defendant, yet that of the general manager and of the superintendent (if any knowledge they had) could, according to well settled rules of law, be imputed to the defendant. The instruction, therefore;, which told the jury that if the agents of the defendant knew the barricade was down, this was knowledge- on the part of the defendant, was proper. ' It does not. appear that, the defendant’s general manager and superintendent were officers, but it does appear that they were agents of a very high degree, in charge of and directing the construction of the fence and the-barricade to the approaches of the bridge. The opinion should have used the word “agents” instead of “officers” and it will be so modified, by substituting the former for the latter, wherever it therein occurs.
II. The defendant is in error in supposing .the court overlooked the point suggested by it in its reply
According to the principles of law stated in the opinion, after the erection of the wire fence, the public had no strictly legal right to use the bridge and the road leading south therefrom, without trespassing, still, if it did so, the defendant could not lay an unguarded and dangerous' trap in said bridge or road, without answering for the consequences, if anyone should be hurt thereby.
III. The defendant’s objection that the fact in relation to the missing plank is incorrectly stated in the opinion, is not well founded. A reference to the