Henry J. Ott & Co. v. Kansas City & Independence Rapid Transit Railway

58 Mo. App. 502, 1894 Mo. App. LEXIS 350

• Court: Missouri Court of Appeals
• Decided: May 21, 1894
• Status: Published

Opinion

Smith, P. J.

This is an action to recover damages for injury to plaintiff’s mare, caused by her stepping into a hole in a box culvert or wooden drain, whereby she broke her leg. The petition alleged that defendant’s railroad “crossed Chicago avenue, one of the public streets of the city of Independence,” and “that it was the. duty of defendant to keep the streetv crossing where its railroad crossed said Chicago avenue in a reasonably safe condition for public use;” that defendant negligently failed to do so; “that there was a wooden culvert in said street on defendant’s right of way at the place where said street was crossed by said railroad; that said culvert formed a part of the crossing provided in said street over said railroad;” that said crossing was by defendant negligently permitted to become unsafe and out of repair “owing to the fact that there was a dangerous hole and a rotten board in the top of said’ culvert;” that plaintiff’s horse stepped into said hole, and by reason of the alleged negligence, her leg was broken, and plaintiffs damaged.

It appears from the evidence that Chicago avenue terminates at the south line of the Westport road, or something like eighteen feet before reaching the defendant’s railway track, which is located on and along the Westport road at that point. The defendant no doubt had acquired an easement over this road which we infer was a public highway. The railway track was so located on and along the public highway as to leave space enough on each side of it for the public travel. Whether it was made a condition of the grant of this, easement to defendant that it should construct and maintain crossings and the approaches thereto over its track opposite the termination of streets leading away from the public highway, or at other points thereon for the use of those of the public who might desire to pass from one side of the railway track to the other, does not appear from any evidence in the record.

It is clear that Chicago avenue does not cross the railway track or the public highway as charged in the petition. The statute imposes no duty on the defendant to 'maintain a crossing, or the approaches thereto, at the point where the plaintiffs’ mare was injured. R. S. 2005. Nor does it appear that by the common law the defendant was in duty bound to maintain a crossing and approaches thereto at that place.

The evidence having failed to show a statutory or common law duty of the defendant to maintain a crossing or approaches thereto, the principles announced in Moberly v. Railroad, 17 Mo. App. 518, and Hill v. Railroad, 49 Mo. App. 520, cited by plaintiffs are without application.

The petition stated a good cause of action, but there was such a total failure of proof of its allegations in the particular indicated, as not to entitle plaintiff to recover and the court should' have so declared when requested thereto by defendant and for its failure in that regard, the judgment must be reversed and the cause remanded.

All concur.