Opinion
No. 39767.
July 8, 1946.
1. RAILROADS: Negligence: Drains: Defective Footbridge: Statutory Duty to Provide Drains: Proximate Cause Not Shown. Plaintiff's injuries when he slipped on a defective footbridge over a ditch along a railroad right of way were not caused by any violation of the statutory duty of the railroad to provide proper ditches and drains.
2. RAILROADS: Negligence: Defective Footbridge: Suitable Crossing: Statute Not Applicable. The statutory duty to provide a suitable crossing where the railroad crosses a road or street has no application to a footbridge in the railroad right of way.
3. RAILROADS: Negligence: Defective Footbridge: Statutory Right to Compel Construction of Sidewalk: No Ordinance Adopted. The city did not adopt any ordinance which would create a statutory duty on the part of the railroad to construct a proper sidewalk.
4. RAILROADS: Negligence: Defective Footbridge: Walk Not Built or Maintained by Railroad. The railroad did not build or assume to maintain a walk along a street crossing its right of way and did not construct the defective footbridge in said walk which caused plaintiff's injuries.
5. RAILROADS: Negligence: Trial: Defective Footbridge Over Ditch: Construction of Ditch by Railroad Immaterial: Different Theory of Plaintiff. Under plaintiff's theory of the case it was immaterial whether the railroad cut a ditch along its right of way over which the city constructed a defective footbridge.
Appeal from Audrain Circuit Court. — Hon. Frank Hollingsworth, Judge.
REVERSED.
A.C. Whitson and Charles M. Miller for appellant.
(1) The evidence conclusively shows that West Liberty Street, where the improvements were made was a public street in the City of Mexico and that the Alton Railroad Company was charged, as an abutting property owner, the sum of $1,461.44, for the improvement of Liberty Street and there was no duty or obligation in law on the part of the Alton Railroad Company or the defendant, to maintain the sidewalk at a point 12 or 14 feet west of the west rail of the railroad track. Tarr v. St. Louis, 235 Mo. App. 1026, 148 S.W.2d 100; Secs. 6952, 6955, 6960, 6978, 6987, 6996, R.S. 1939, which were applicable to the City of Mexico, it being a city of the third class. (2) The evidence conclusively shows that West Liberty Street, where the improvements were made, was a public street in the City of Mexico, and that the City of Mexico had control of the sidewalk at the place in question and that in no event was the Alton Railroad or the defendant, liable for the bridge or culvert or its condition. Lewis v. Kansas City, 233 Mo. App. 341, 122 S.W. 852; Walker v. Hines, 235 S.W. 831. (3) Plaintiffs given Instruction P 1 did not correctly declare the law by stating that the Alton Railroad Company and the Louisiana Missouri River Railroad Company were under duty to maintain the sidewalk on the south side of Liberty Street at the place in question, for there was no such duty or obligation on the part of the railroads. At most, the railroads were only required to maintain the sidewalk over the railroad track. The instruction was further erroneous in reference to duty of the railroads to provide sufficient ditches and drains to prevent the overflow of water over the bridge or culvert. City of Higginsville ex rel. v. Alton Railroad Co., 171 S.W.2d 795; Secs. 5214, 5215, 5216, R.S. 1939; Resolution No. 1536; Ordinance No. 1544; Ordinance No. 1567 of the City of Mexico, Missouri, a City of the third class.
Kenneth Howe Sanford and J.W. Buffington for respondent.
(1) It is the statutory duty of all railroads to provide sufficient ditches and drains to dispose of water on its right of way so as not to injure any one or his property. Independence v. Mo. Pac. Ry. Co., 86 Mo. App. 585; Moberly v. Kansas City, St. Joseph Council Bluffs Ry. Co., 17 Mo. App. 518; Lee v. St. Louis S.F. Railroad Co., 150 Mo. App. 175, 129 S.W. 773; Zwicky v. Atchison, T. S.F. Ry. Co., 164 Mo. App. 180, 138 S.W. 201, 105 A.L.R. 549; Sec. 5222, R.S. 1939. (2) The defendant company was liable for the defect in the sidewalk at the point where shown, towit, 12 feet West of the center line of the railroad track as it would be if the defect had occurred on the sidewalk between the rails. The statutory duty of a railroad is to maintain its approaches on and over its right of way to the track the same as it is its duty to maintain the crossing between the tracks. See authorities under Point (I); Sec. 5214, R.S. 1939. (3) Manifestly a railroad is liable for an unsafe and dangerous condition of any part of its approach on a public crossing where the dangerous condition is created by reason of the railroad's failure to properly drain the right of way, as well as if it negligently permits a bridge or covering to be inadequate for the passage of pedestrians or vehicles. Secs. 5214, 5222, R.S. 1939. (4) A railroad company is liable for a defective and dangerous condition which it permits to exist in its right of way where it crosses a public street, and the opinion of the St. Louis Court of Appeals holding to the contrary is in conflict with controlling opinions by this court. Cooper v. Davis, Director General, 310 Mo. 629, 276 S.W. 54; Crockett v. City of Mexico and Wabash Ry. Co., 336 Mo. 145, 77 S.W.2d 464. (5) The opinion overlooks and fails to show important and vital evidence, towit, the provisions of Section 4 of Ordinance 33 of the City of Mexico, Missouri. The evidence showing defendant had maintained the sidewalk crossing and recognized its liability therefor.
Respondent, as plaintiff, recovered a judgment for $3,000.00 as damages for personal injuries due to a fall from a footbridge along a sidewalk on defendant's right of way. On appeal the St. Louis Court of Appeals reversed the judgment. [189 S.W.2d 665.] On respondent's application we have brought the case to this court for review and, although the application is based solely on alleged conflict with our previous decisions, we will determine the case as on original appeal. [Mo. Const. Art. 5, sec. 10; Supreme Court Rule 2.06.]
Liberty Street in Mexico, Missouri, is sixty feet wide, runs east and west and is crossed in a northerly and southerly direction by defendant's right of way. Both street and right of way are practically level. Along the south side of the street is a sidewalk, about four feet wide, which crosses a ditch or depression on defendant's right of way twelve feet from the center line [650] of defendant's track. The sidewalk is made of cinders and formerly there was a twelve or fourteen inch galvanized iron pipe in the ditch covered with cinders to conform to the rest of the sidewalk. About four or five months before plaintiff was injured the city caused the central twenty-two feet of the street to be paved across the right of way, the south edge of the pavement being about fifteen feet from the north edge of the sidewalk. While the paving was in progress some of the workmen took the iron pipe from the ditch, dug the ditch somewhat deeper and placed a wooden platform across it with the ends resting on the dirt or cinders. There was evidence that in times of heavy rainfall water in the ditch rose to, and sometimes over, the platform and on several occasions washed the platform away from the sidewalk. On the night of the injury to plaintiff a rain had brought the water up to, but not over, the platform. Plaintiff, walking west along the sidewalk, stepped upon the platform which slipped forward and caused him to fall into the ditch.
The question here is: did the evidence support the charges of negligence submitted to the jury? Those charges were: (1) that defendant negligently failed to secure the boards covering the ditch; (2) that defendant violated its statutory duty under Section 5222 by failing to provide sufficient ditches and drains to prevent overflow of water on or about the footbridge, so that same was rendered insecure. [All references to statutes in this opinion are to sections in Revised Statutes Missouri 1939 and corresponding sections in Mo. R.S.A.]
Plaintiff claims that defendant had both a statutory and common law duty to maintain the footbridge, citing Sections 5222 and 5214, and the following cases: Independence v. Mo. Pac. Ry., 86 Mo. App. 585; Moberly v. Ry., 17 Mo. App. 518; Lee v. Ry., 150 Mo. App. 175, 129 S.W. 773; Zwicky v. A.T. S.F. Ry., 164 Mo. App. 180, 148 S.W. 201, 105 A.L.R. 549; Cooper v. Davis, 310 Mo. 629, 276 S.W. 54; Crockett v. City et al., 336 Mo. 145, 77 S.W.2d 464.
Section 5222 makes it the duty of railroads to construct and maintain suitable ditches and drains to carry off the water, including surface water, whenever the draining of such water has been obstructed or rendered necessary by the construction of the railroad. The main purpose of this statute is to compel railroads, when they obstruct the natural drainage, to take steps to prevent the overflow of adjacent land, but whatever may be said about the purpose of the statute, it certainly has no application to the instant case. There is nothing in the record to show that plaintiff's injury was caused by insufficiency of the ditch. His position is that the footbridge slipped away from him because of the wet and slippery condition of the ground upon which the ends of the bridge rested. That condition must have been due to the rainfall upon the surface of the ground and not to the water in the ditch, for plaintiff's evidence shows that the water had not overflown the banks of the ditch.
Section 5214 requires a railroad to construct a good and sufficient crossing, not less than twenty-four feet in length and of a specified kind and with sufficient approaches, where it crosses a public road or street. There is nothing in this case to indicate that defendant failed to comply with this section or that plaintiff was injured by non-compliance. This section has nothing to do with the sidewalk where plaintiff was injured.
"This section [5214] applies only to railroad crossings and approaches thereto and not to rights of way outside of such crossings and approaches." [ 237 Mo. App. 1204, 171 S.W.2d 795, 803.]
Another section, 5215, authorizes the city by ordinance to compel the railroad to improve all or a part of its right of way or to construct and maintain a sidewalk "of like materials and as of good quality, as such city, . . . has required, or shall in such ordinance require, of other property owners" etc. Together these two sections require a railroad to construct a proper crossing at least twenty-four feet wide, without an ordinance, and to improve [651] such additional portion of a street as the city by proper ordinance shall require. Here the city caused the central twenty-two feet of the street to be paved across the right of way, but there is no ordinance requiring the railroad to improve any other portion of its right of way or to build a sidewalk.
No statutory duty of defendant to maintain the sidewalk has been shown. At common law if a railroad crosses an existing street it must do so with as little injury as possible to the street, or if it cuts a ditch through, or otherwise damages, an existing sidewalk, it has the duty of restoring the same to its former condition. Also, if a railroad voluntarily assumes to build or maintain a sidewalk upon its right of way it must exercise ordinary care to keep the walk in a reasonably safe condition. Here there is no evidence that the railroad was built across an existing street, or that defendant ever assumed to build or maintain the walk and the evidence is positive that defendant did not construct the footbridge. Whether defendant cut the ditch through the walk will be discussed later.
In the case of Independence v. Ry., 86 Mo. App. 585, the defendant had crossed an existing street, had accepted an ordinance binding it to maintain the street across its right of way and had built the sidewalk.
Moberly v. Ry., 17 Mo. App. 518, properly holds that the crossing which a railroad is required to construct is not confined to the track, but includes proper approaches. In the instant case there is no complaint about the crossing in the central portion of the street nor the approaches thereto, but plaintiff contends that defendant must maintain an additional crossing for pedestrians.
In Lee v. Ry., 150 Mo. App. 175, 129 S.W. 773, the main contention was as to whether the road had been legally established, but, as the railroad had built the crossing and invited the public to use it, the opinion holds that the railroad was under the duty to exercise care to keep the crossing in a reasonably safe condition.
In Zwicky v. Ry., 164 Mo. App. 180, 148 S.W. 201, the injury was caused by a fall from a sidewalk which the railroad had constructed over a ditch it had dug in building the track, the sidewalk leading to the railroad depot.
In Cooper v. Davis, 310 Mo. 629, 276 S.W. 54, the salient facts were: the railroad ran north and south across an east and west street. Defendant's depot was about one-half block north of the street and defendant railroad had paved its right of way from its station to the street. Along and in the north edge of the street defendant, in compliance with a city ordinance, had constructed a concrete sidewalk across its right of way to conform to the sidewalk on each side of its right of way. On the west edge of defendant's right of way a north and south ditch passed under the sidewalk. Over this ditch, on its own right of way, defendant had constructed a platform of boards adjacent to and level with the sidewalk. The general public used this platform to "corner across" to defendant's depot. There was no barrier at the ditch either on the sidewalk proper or the board extension. Plaintiff was injured by falling from the board platform into the ditch. We held that the question of defendant's negligence in failing to erect a barrier was for the jury, because defendant had built the board extension and had invited the public to use it. The opinion states that it does not pass upon the liability that might have existed had the railroad merely constructed the sidewalk proper, and not the extension. We think the liability would have been the same in either event for the sidewalk was one which the railroad was required by ordinance to build, and, therefore, was required to exercise care to build and maintain it in a reasonably safe manner.
In Crockett v. City et al., 336 Mo. 145, 77 S.W.2d 464, a railroad was held liable for an injury due to a defective sidewalk along a street where it crossed the railroad track. The opinion states that the city had notified the railroad to construct the walk. [336 Mo. l.c. 151.] Presumably this was in pursuance to an ordinance for the opinion cites the statute, [652] now section 5215, which authorizes a city to make such requirement by ordinance. [336 Mo. l.c. 152.]
None of the cases cited by plaintiff supports his claim that the defendant in the instant case was under a duty to maintain the sidewalk where plaintiff was injured because: the evidence here fails to show that defendant damaged the walk, or had been required by the city to construct it, or had actually built it or at any time assumed to maintain it.
In a brief filed in this court, plaintiff urges certain matters apparently for the first time. First, he calls attention to a city ordinance which was introduced in evidence and provides that it shall be the duty of a railroad to keep all streets and alleys across which it may run in good repair "at such crossings . . . in the manner provided by the general laws of this state, . . ." The ordinance adds no new duty. The railroad has the same duty under Section 5214 without an ordinance. Next, plaintiff cites pages of the record to show that "defendant had maintained the sidewalk crossing and recognized its liability therefor." We have examined the pages cited and the entire record and find no evidence that the defendant ever constructed, maintained or repaired the sidewalk. One of the pages cited by plaintiff contains the following testimony from one Rodenbaugh, a witness for plaintiff:
"Q. And as you went across the rails of the roadway, of the railroad, did you cross over a ditch or depression?
A. Well, its a ditch that has been there for several years ago. The railroad drained down that — put in a drain ditch along that side . . ."
We do not understand plaintiff to contend that the quoted testimony lets him go to the jury on the theory that the defendant railroad cut the ditch through the sidewalk. If so it is contrary to the testimony of other witnesses for plaintiff, including plaintiff himself, who said they never had observed the ditch until the street was paved. One of them, Bryan, said that until the street was paved the walk was a solid cinder walk. Plaintiff's theory in the trial court, the court of appeals and, we think, in this court, is not that defendant cut the ditch, but that it failed to provide a sufficient ditch for proper drainage. That is the negligence charged in the petition.
Upon the facts shown by the record the defendant was under no duty, either by statute or the common law, to maintain the sidewalk and the judgment of the circuit court is hereby reversed. All concur.