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es, and that but for such additional switch- conditions are to be expected, and should be es, etc., would not have been necessary, and taken into contemplation. you further find that such additional use of Dodge, at the date of his deed of dedicasaid main track, if any, damaged plaintiff's tion, bad full title to McClelland avenue, and property, then you should find damages for of the land of which appellee's lot constiplaintiff on such additional use occasioned, tutes a part. He then had in such land if any."

every right or privilege that could be carved In so giving the charges quoted we think out of it. He could convey the whole absothere was error as assigned. Thereby dam- lutely, or such estate therein as he chose, ages were authorized because of a mere ex- upon any or no consideration, as he might tension in the use of the right of way beyond desire. He in fact platted the land, and dedi. that originally contemplated, as determined cated specified parts thereof to the public by the jury. No evidence other than the as passageways. The dedication of an easedeeds mentioned is cited as showing the ment or passageway over McClelland avelimits of the use to be made of the right of nue, however, was not made absolute in the way as originally contemplated. The deeds general public. Dodge reserved the right, spoke for themselves. It was for the court, which affected all lands then owned by him, and not the jury, to determine and declare to select one or more railway corporations their legal effect, which was, otherwise than to which he might also grant an easement or as indicated by the charge, to confer upon right of passage over this street. This reappellant the right to use its right of way served right, of course, should not be confor railway purposes, restricted only by the strued as giving Dodge power to thus enable right of the public to the reasonable use of railways to wholly occupy and use the aveMcClelland avenue, and the right of all per- nue, to the entire exclusion of the general sons not to have a nuisance imposed. See public, for to so construe the provision would Olive v. Sabine & E. T. Ry. Co. (Tex. Civ. constitute a repugnant clause, enabling App.) 33 S. W. 142; S. A. & A. P. Ry. Co. v. Dodge to entirely defeat the dedication to Faires (Tex. Civ. App.) 26 S. W. 82; Cane the public, restricted though it was, and Belt Ry. Co. v. Ridgway (Tex. Civ. App.) 85 which therefore could not be upheld. In S. W. 496; Railway v. Grossman (rehearing this case, however, the public right is not pending), 12 Tex. Ct. Rep. 743; City of Hous- involved. It is not insisted that the use of ton v. G., C. & S. F. Ry. Co. (Tex. Civ. App.) the avenue as a passing way has been un35 S. W. 74; Territory of New Mexico v. necessarily or unreasonably impeded. The United States Trust Co., 172 U. S. 171, 19 question as presented by the record is one Sup. Ct. 128, 43 L. Ed. 407; Gulf, C. & S. F. of private right merely. Appellee, a private Ry. Co. v. Oakes, 94 Tex. 155, 58 S. W. 999, person, complains that by the construction 52 L. R. A. 293, 86 Am. St. Rep. 833; Rail- and operation of appellant's railway his way Co. v. Pape, 62 Tex. 313; Texas & Sa- property has been injured; and his right of bine Ry. Co. v. Meadows, 73 Tex. 32, 11 S. recovery should be restricted, in the absence W. 145, 3 L. R. A. 565; Railway v. Railway, of allegation and proof of such use of Mc71 Tex. 165, 9 S. W. 94; Lewis on Eminent Clelland avenue as constitutes a nuisance, to Domain, 88 565–567; 1 Wood on Railway such injury, if any, as has been done appelLaw, 654, note 1.

lee's property by the erection of a depot, As submitted in the charge, the jury, in and the use and operation of appellant's railorder to assess damages, were not required way on land not embraced within said aveto find that the use of McClelland avenue nue. had become so enlarged as to constitute a Because of the error discussed, the judgnuisance, but were permitted to assess dam- ment is reversed, and the cause remanded ages for a mere increased use of the right for a new trial. of way that may have been occasioned by the location of the depot. The right to so locate and use the depot was lawfully acquired—it is not even disputed-and the mere ST. LOUIS, M. & S. E. RY. CO. V. SHANfact that this was the occasion of the in

NON. creased use of the right of way cannot alter (Supreme Court of Arkansas. June 24, 1905.) the principle. Whatever may be the cause, 1. RAILROADS KILLING CATTLE

NEGLIthe right to use is the same. The only

GENCE-EVIDENCE-COMPETENCY. limitation is that the use of the right of

In an action against a railroad for the

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killing of cattle in the nighttime, testimony of way must be reasonable, and not extend to a witness that he had never ridden on an enthe point of becoming a nuisance. The mere gine, but that he knew how far a imposition of more railway tracks, however,

headlight would light up a track, from stand

ing by the side of engines in the nighttime, and or an increased use of tracks beyond what

that such light would light up for a specified may have been originally thought to be distance, was competent. probable, does not constitute a nuisance. (Ed. Note.—For cases in point, see vol. 20, Rainey v. Red River, Texas & Southern Ry. Cent. Dig. Evidence, 88 2203, 2268.] Co. (Tex. Civ. App.) 80 S. W. 95. The nat- 2. SAME-EVIDENCE-SUFFICIENCY. ural development of the locality and change

In an action against a railroad como

for the killing of cattle in the nighttir in conditions may make such enlarged use dence held sufficient to show negligence necessary for the public good. Such changed an inferior headlight.

common

Appeal from Circuit Court, Raudolph Appeal from Little River Chancery Court; County; John W. Meeks, Judge.

James D. Shaver, Chancellor. Action by A. K. Shannon against the St. Suit by one Arnold against one Wagner to Louis, Memphis & Southeastern Railway quiet title. From a judgment in favor of Company. From a judgment in favor of plaintiff, defendant appeals. Reversed. plaintiff, defendant appeals. Affirmed.

J. M. Carter, for appellant. E. F. Friedell L. F. Parker and Orr & Luster, for ap- and W. H. Arnold, for appellee. pellant. C. H. Henderson, for appellee.

WOOD, J. This is a suit by appellee RIDDICK, J. This was an action by A. against appellant to quiet title to the northK. Shannon against the railway company to west quarter of Sec. 24, T. 13 S., R. 32 W., in recover damages for the loss of two cows Little River county. Appellee deraigned title and a calf killed by the train of the com- through various parties from the United pany. He recovered judgment for $45. The States to himself. He also deraigned title accident happened on a dark and rainy to the south half of the northwest quarter, night. The engineer testified that the train supra, through John B. Jones, from the consisted of an engine, a baggage car, and state of Arkansas. Under the overdue tax passenger coach. He said that he was keep- | law the appellant claimed title by virtue of ing a careful lookout, and discovered the a donation deed executed June 21, 1871. The cattle when they were about 90 or 100 feet chancellor tried the issue upon facts preahead;

that the headlight on the locomotive cisely similar to those set forth in Wagner was a common oil headlight, and on such V. Arnold, 72 Ark. 371, 80 S. W. 577, and a night did not light up the track for more held that appellee's title was valid and suthan 90 or 100 feet; and that he could not perior to the title of appellant, and canceled have discovered the cattle sooner than he appellant's donation deed and quieted the did. He further testified that the train was title of appellee to the land in controversy. running about 15 or 18 miles an hour, and For the reasons given in Wagner v. Arnold, that, though there were only two cars at- supra, that was error, for which the judg. tached to the engine, he could not have ment must be reversed. As to the north stopped under about 200 yards. But a wit- half of the northwest quarter of said secness for plaintiff testified that, though he tion, the decree will be entered here for aphad never ridden on an engine, he knew how | pellant, dismissing the complaint of appellee far a common headlight would light up a as to said tract. But as to the south half track; that he had stood by the side of en- of the northwest quarter, supra, it appears gines on rainy nights, and in that position that the court did not pass upon appellee's could see the track for 200 yards ahead. claim of title through the overdue tax de. While this evidence was not very satisfac- cree set up in his complaint. Appellant tory, we think it was competent, and it claims in his brief that this claim was abantended to show that the headlight on the doned. Appellee claims that it was not engine of defendant, which only gave light abandoned. The record is silent upon the for 90 or 100 feet ahead, was of a very in- | question. The chancellor found “that the ferior kind, and that the company was guilty plaintiff, John H. Arnold, claims said tract of negligence in using such a light. For this of land [the northwest quarter, supra) and reason, we think it cannot be said that the deraigns his title in the following manner, verdict is without evidence to support it. to wit: The state of Arkansas to the heirs

One of the instructions given by the court, of George W. Underhill, deceased; Virginia if it stood alone, might be misleading; but, Diamond, as sole surviving heir at law of when the whole charge is considered, we George W. Underhill, deceased, to John B. are of the opinion that it was substantially Jones; John B. Jones to the Pulaski Land correct.

Company; and the Pulaski Land Company Judgment affirmed.

to John W. Arnold, the plaintiff.” The chancellor, having found that this title to the whole tract was "valid, and superior to the

title of defendant," deemed it unnecessary WAGNER V. ARNOLD.

to presume to pass upon the claim of title (Supreme Court of Arkansas. June 24, 1903.)

also set up by plaintiff to the south half of ISSUES-FAILURE TO DETERMINE APPEAL

the northwest quarter, above mentioned. But REVERSAL-JUDGMENT.

the record only shows that the court did not Where in a suit to quiet title the court did pass upon this claim. It does not show not pass on plaintiff's claim of title through

that plaintiff abandoned it. Inasmuch as it an overdue tax decree pleaded in his complaint with reference to a portion of the property in

appears that the lower court did not pass controversy, and the record did not show that upon and determine whether this claim of plaintiff had abandoned such claim, judgment appellee to the south half was superior to on reversal will not be rendered dismissing the

the title of appellant, we will remand the complaint, but the cause will be remanded for further proceedings.

cause as to that claim, with directions to [Ed. Note.-For cases in point, see vol. 3,

the lower court to proceed, if the plaintiff so Cent Dig. Appeal and Error, $ 4610-4614.) desires, to pass upon that issue.

.

error.

9. SAME-ERROR. McĦUGH V. ST. LOUIS TRANSIT CO.

An instruction that if the conductor, in

addition to warning plaintiff not to step from (Supreme Court of Missouri. June 28, 1905.) the car before she alighted therefrom,"exer1. CARRIERS-NEGLIGENCE-INJURIES TO PAS- cised reasonable care to prevent her from alightSENGER ALIGHTING-PLEADING DIFFER

ing therefrom," she could not recover, was not ENT CAUSES OF ACTION.

A petition in an action by a passenger In Banc. Appeal from Circuit Court, St. against a street railway, alleging that defendant's conductor called out the street of plain

Louis County; John W. McElhinney, Judge. tiff's destination, and, after stopping the car, Action by Mary McHugh against the St. negligently started the same while plaintiff Louis Transit Company. Judgment for was alighting, whereby she was injured, and that in violation of a city ordinance the con

plaintiff, and defendant appeals. Reversed. ductor allowed plaintiff to leave the car while Boyle, Priest & Lehmann and Geo. W. it was in motion, which violation directly con

Easley, for appellant. A. R. Taylor, for re tributed to plaintiff's injuries, states two causes of action-one at common law for negligence,

spondent. the other for damages from violation of the ordinance.

BURGESS, J. This is an action for dam2. ACTIONS — JOINDER OF CAUSES STATING SEPARATELY.

ages alleged to have been sustained by the Under Rev. St. 1899, $ 593, requiring sep

plaintiff, resulting from injuries received in arate causes of action united in the same peti- an accident which occurred at the intersection to each be separately stated, with the relief

tion of Delmar and Euclid avenues, in the sought in each, so that they may be distinguished, an action for damages at common law

city of St. Louis, on the 1st day of April, for negligence cannot be joined in the same

1901, by reason of one of the cars of the decount with one for statutory negligence. í fendant, in which plaintiff was a passenger,

[Ed. Note.--For cases in point, see vol. 1, being started forward with a jerk just as Cent. Dig. Action, $ 410.)

i plaintiff was in the act of alighting there3. SAJE-IMPROPER JOINDER-MOTION TO RE

from. The petition alleges that as such car QUIRE ELECTION. Where a petition improperly joins two

approached said Euclid avenue and Delmar different causes of action in the same count,

avenue defendant's conductor in charge of the remedy is by motion to require plaintiff to said car called out "Euclid Avenue!" and said elect on which count he will proceed to trial.

car was stopped at or near said crossing, (Ed. Note.-For cases in point, see vol. 39, Cent. Dig. Pleading, 88 1199, 1200.)

plaintiff's destination, and plaintiff thereup

on, at said invitation, proceeded to alight 4. CARRIERS-EVIDENCE DECLARATIONS OF INJURED PARTY.

| from said car whilst the same was so stopIn an action against a street railway for ped, and whilst she was in the act of alightinjuries sustained while alighting from a car, ing, and before she had reasonable time or a witness was properly permitted to testify

opportunity to do so, defendant's servants that plaintiff "would bring her hand up to her side, and say that her side hurt her, and that

in charge of said car carelessly and neglishe had such pains in the hollow of her neck gently caused and suffered said car to be and the back of her head," the evidence being started, whereby the plaintiff was thrown clearly with reference to plaintiff's expressions of pain felt at the time, and not made after

from said car, and sustained great and perinstituting the suit.

manent injuries upon her body and legs, and [Ed. Note.-For cases in point, see vol. 20, also great and permanent internal injuries, Cent. Dig. Evidence, 88 377-382.)

sustaining an injury to her knee and to her 5. SAME-SUBMISSION TO JURY - SUFFICIEN- side, causing a compression to her side and CY OF EVIDENCE.

chest and injury to her lungs, and causing In an action against a street railway for injuries received by plaintiff,

her to have pleurisy, and also injuring her

passenger while alighting from a car, evidence held suli- head, and causing a great and permanent incient to authorize submission of the case to the jury to her nervous system. And the plainjury.

tiff avers that at the time of her said injury 6. SAME-ALLOWING PASSENGERS TO ALIGHT FROM MOVING CAR-CITY ORDINANCE.

there was in force in the city of St. Louis A city ordinance providing that conductors

an ordinance of said city by which it was shall not allow ladies or children to leave or provided that conductors of street cars enter cars while in motion, is not unreason- should not allow women or children to enter able or void in that it imposes on the carrier the duty of controlling the acts of passengers,

or leave the car whilst the same was in mowhen the passenger is at liberty to do as he tion, yet the plaintiff avers that defendant's pleases.

conductor in charge of said car, in violation 7. SAME-POLICE POWER.

of said ordinance, caused saia car to start The ordinance being in the nature of a

in motion whilst plaintiff was leaving it, police regulation for the safety of passengers is within the power and authority of the city to

and allowed the plaintiff to leave said car pass under its charter.

whilst the same was in motion, which viola8. SAME CONTRADICTORY INSTRUCTIONS- tion of said ordinance directly contributed to HARMLESS ERROR.

cause plaintiff's said injuries. The answer In an action against a street railway for injuries received by a passenger while alight

was a general denial and a plea of contribuing from a moving car, an instruction requir- tory negligence on the part of plaintiff in ating in one part the exercise by those in charge

tempting to alight from a moving car 150 of the car of "a very high degree of care," and in another part of "ordinary care" by the con

feet east of the eastern line of Euclid aveductor, if erroneous, was in defendant's favor, and not reversible error.

The plaintiff's evidence tended to show

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nue.

clidhavenue, oor 4900 Delmar avenue; "that

on called out, Euclid'avenue, 4.500.", that plaine

that she was at the time of the accident she was injured. He testified, in substance, about 25 years of age, and receiving $14 per that there were at the time of the accident month for her services as housewoman; that only three passengers on the car-the plain-, on the day of the accident to her she board- tiff, a Miss Walsh, and another lady, whose ed defendant's west-bound car at Pendleton name he did not mention; that plaintiff askand Finney avenues, about 8 o'clock in the ed him to let her off at Euclid avenue, and

that car passed

on the same car with her there were five other tiff came back in a rush, and stepped on the passengers, four in the front part and one platform and down on the first step; that he in the rear part of the car; that when the then grabbed hold of her, saying, "Hold on, conductor called for plaintiff's fare she re- lady; don't jump off until it stops;" that as quested him to let her off at 4900 west, or he said this she jumped off backwards; that Euclid avenue; that when the car reached the point at which she jumped off backwards said avenue or number it stopped, and the was 150 feet east of Euclid arenue, and that conductor from the platform spoke to plain at the time the car was moving at a speed of tiff, saying "this is 4900," and told her to about 15 miles an hour; that after the plainget off, whereupon the plaintiff arose in her tiff jumped and fell he got off immediately seat and went towards and upon the rear and ran to her assistance, and that plaintiff platform of the car, and took one step, when was then taken to the doctor's office. He the car was mored forward with a jerk, stated that after the other passengers got which threw her to the ground, and caused off to help plaintiff the car did not stop, but the injuries complained of; that after being continued on for eight blocks west; that he thrown from the car plaintiff was taken to grabbed the plaintiff with both hands, and St. Joseph's Hospital, where she remained pulled her shawl off her. This statement 10 days under the treatment of physicians was contradicted by the plaintiff, who statthen in the service of the St. Louis Transit ed that she did not have à shawl on, but a Company; that upon leaving the hospital jacket, which was buttoned. she returned to Mrs. Dunn's, where she had Miss Walsh's testimony tended to corrobobeen employed at the time of the injury, and rate the testimony of the conductor. was thereafter under the treatment of Dr. Plaintiff recovered judgment for the sum Grant. Plaintiff stated in her testimony that of $3,300, from which judgment, after unshe was injured on the back of her head and successful motions for new trial and in aron her side, and that her knees and arms rest, defendant appeals. were bruised; that she was rendered uncon- This appeal was granted and the appeal scious by the fall, and did not regain con- i perfected prior to the announcement of the sciousness until after she reached the hos- | decision of the court in banc in the case of pital; that after the accident and up to the Gabbert v. Chicago, Rock Island & Pacific time of the trial she had a pain in her side, Railway Company, 171 Mo. 84, 70 S. W. 891, and had been subject to fainting spells, and and the point as to the adoption of the had pains in her head constantly; that she amendment providing for a verdict by less was unable to discharge her duties as sery- than 12 jurors was brought into question by ant to Jírs. Dunn until May following her instructions and the motion for new trial. injury. Plaintiff proved that she paid $30 for At the opening of plaintiff's case, and again medical services.

at the close of all the evidence, defendant Mrs. Dunn, witness for plaintiff, stated moved the court to require plaintiff to elect that before the injury plaintiff's health was upon which cause of action alleged in the good, but that when she returned after the petition she would proceed to trial. Defendinjury she would complain of her side hurt- ant insists that the petition contains two seping her, and of pains in the back of her neck arate and distinct causes of action, and that and head; that she would have fainting the court erred in overruling said motions. spells, and at those times would fall forward The argument is that the first cause of acon the floor, dropping anything she might tion is for the negligent acts of the conducthave in her hands; that these spells at first or in calling out “Euclid Avenue,” stopping occurred once or twice a week, and some- the car at the plaintiff's destination, and times would be 10 days apart, and then sev- while she, at his invitation, was proceeding eral weeks or a few months apart, and then to alight therefrom, while the car was standcome very close together again.

ing, and before she had reasonable time or Plaintiff read in evidence article 6, enti- opportunity to do so, the car was negligenttled “Of Street Cars," and subdivision 5 of ly caused and suffered to be started, whereby section 1246, of the Revised Ordinances of the plaintiff was thrown and injured; while the city of St. Louis, as follows: "Conduct- the other cause of action is for the negliors shall not allow ladies or children to leave gent act of the conductor in allowing the or enter the cars while the same are in mo- plaintiff to leave the car while the same was tion."

in motion, in violation of an ordinance, which Adolphus Brown, witness for the defend- violation directly contributed to plaintiff's ant, testified that he was the conductor in injury. That the petition states two causes charge of the car at the time plaintiff claims of action is, we think, clear-the first an action at common law for negligence; the case a petition improperly joins two differother an action for damages alleged to have ent causes of action in the same count, it been sustained by plaintiff by reason of the has always been ruled by this court that the alleged negligence of defendant's conductor remedy is by timely motion to require the in charge of the car in which plaintiff was a plaintiff to elect upon which count he will passenger in permitting her to leave said car proceed to trial, as was done in this case. whilst the same was in motion, in viola- Mooney v. Kennett, 19 Mo. 551, 61 Am. Dec. tion of the ordinances of the city of St. Louis. 576; Otis v. Merchants' Bank, 35 Mo. 128; They are independent of each other, and up- Kern v. Pfaff, 44 Mo. App. 32; Liddell v. on either an action might be maintained, but Fisher, 48 Mo. App. 451; Christal y. Craig, they cannot, under the rules of good plead- 80 Mo. 367; Childs v. R. R. Co., 117 Mo. ing, be embraced in the same count. If em- 414, 23 S. W. 373. The case in hand is clearbraced in the same petition, they should be ly distinguishable from Bartley v. Trorlicht, in separate counts, with a prayer for judg- 49 Mo. App. 216, and that class of cases, ment at the conclusion of each count. When where a number of defects in machinery, all separate causes of action are united in the existing at the time of the injury, might cosame petition, each must be distinctly and operate with each other in producing it; and separately stated, with the relief sought to under such circumstances it would be propeach cause of action in such manner that er to unite them, because the ultimate effect they may be intelligently distinguished. Sec- of all the defects produced the injury, and tion 593, Rev. St. 1899; Childs v. Bank of because capable of and likely to co-operate Missouri, 17 Mo. 213; Mooney v. Kennett, 19 with each other in the result. The motions No. 551, 61 Am. Dec. 576; Doan v. Holly, 25 should have been sustained. Mo. 357; Marsh v. Richards, 29 Mo. 99; St. Mrs. Dunn, a witness for plaintiff, was Louis, etc., Co. v. City of St. Louis, 86 Mo. permitted to testify, over objection offered 495; Christal v. Craig, 80 M0. 367; Hender- by defendant, that plaintiff "would bring her son v. Dickey, 50 Mo. 161; Kendrick v. R. R. hand up to her side, and say that her side Co., 81 Mo. 521; Linville v. Harrison, 30 Mo. hurt her, and that she had such pains in 228; Jamison v. Copher, 33 Mo. 483; Eder- the hollow of her neck and the back of her lin v. Judge, 36 Mo. 351; Southworth Co. v. head.” This evidence was clearly with refLamb, 82 Mo. 242. While there was but one erence to plaintiff's expressions of pain felt injury, and there could be but one recovery at the time, and not made after the institufor it, any number of negligent acts preced- tion of suit, as claimed by defendant. It ing the injury and leading up to and con- therefore falls within the rule announced by tributing to it might properly be set forth in Mr. Greenleaf in his work on Evidence, as the same count of the petition, if of the follows: "So, also, the representation by a same character. An action for damages at sick person of the nature of symptoms and common law for negligence cannot be joined effects of the malady under which he is lain the same count with one for statutory boring at the time are received as original negligence for the very obvious reason that evidence. If made to a medical attendant, they could have no possible connection with, they are of greater weight as evidence, but or in any way be dependent upon, each other. if made to any other person they are not on Kendrick v. Chicago & Alton R. R. Co., 81 that account rejected.” Greenleaf on Evivo. 521; Harris v. Wabash R. R. Co., 51 dence (Lewis' Ed.) vol. 1, § 102. Mo. App. 125. Hill v. Mo. Pac. Ry. Co., 49 Mo. It is next claimed that the demurrer which App. 520, and same case in 121 No. 477, 26 was interposed to plaintiff's evidence should S. W. 576, relied upon by plaintiff, does not have been sustained, but we are unable to announce a contrary rule. Upon the other concur in this contention. The evidence, alhand, the acts of negligence preceding the though conflicting, was, we think, sufficient injury in that case were all of the same to entitle plaintiff to have her case go to the character, and naturally led up to and con- jury. tributed to the accident, while in the case It is also contended that the third instrucat bar they were independent of, and had no tion given for plaintiff should have been reconnection with, each other. Each cause of fused, because there was no evidence upon action was founded on a different right, and which to base it; but this contention is, we each right separate from the other, because think, untenable. not derived from the same source or in the Another contention is that the court erred same manner. As the accident resulted from in admitting the ordinance in evidence, upon the same transaction, the causes of action the ground that it is unreasonable and void, could well be joined in the same petition, in that it imposes upon the carrier the duty but in separate counts, with a prayer for of controlling the acts of passengers, when judgment at the conclusion of each count. the passenger is at liberty to act as he The court, at the instance of plaintiff, in- pleases. This same ordinance was before the structed the jury upon both causes of ac- St. Louis Court of Appeals in the case of Fortion, and authorized a recovery upon proof tune v. Missouri Pacific Ry. Co., 10 Mo. App. of either negligence or of a violation of the 252, and it was then upheld upon the ground ordinance, and thus recognized the petition that it was for the safety of passengers travas stating two different causes of action. In eling upon railways and steam cars within

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