ROGUE V. CHICAGO &: A. B. CO.
& A. R.
E. D. Mi88ouri, E. D.
RAILROAD COMPANIES-NEGLIGENCE-CROSSmGs-DUTY TO MAINTAIN.
Ip. an action against a railroad company to recover for injuries resulting from its negligence in-not constructing and maintaining a sufficient crossing, as required by Laws Mo. 1885, p. 87, the defendant can be relieved of liabil· ity therefor only by showing that the crossing was constructed in strict compliance with the statute; that it has always been maintained in a safe condition; and that it is located in that part of the street that is graded and usually traveled by vehicles; or that the failure to do any of these things was not the direct cause of the injury; or that the accident was the result of the negligence of the person injured; or that it was the result of the negligence of neither; or when the plaintiff, upon whom the burden of proof rests, fails to show by a preponderance of evidence that the defendant has failed to discharge its'duty in some respect.·
In an action brought bya wife against a railroad company, to recover damages for her husband's death caused by the failure of the compan, to construct and maintain a sufficient crossing, it is proper for the jury, In assess,ing the damages. to consider the age of the husband, his health and habits of life,and his capacity for earning a livelihood for himself and his family. 1
NEGLIGENCE-ACTION FOR DEATH OF HUSBAND-DAMAGES.
D. P. Dyer, for plaintiff. R. H. Kern, for defendant.
THAYER, J., (oraUy chargi'(l,g jury.) The sale ground relied upon by the plaintiff in this case for recovery is that the defendant railroad company failed to construct and maintain a good and sufficient crossing where the defendant',s railroad crosses the Louisiana and Prairieville graveled road in the city of Louisiana, Missouri; and that in consequence of such neglect plaintiff's husband was thrown from his wagon, and killed, as he was driving over that crossing. The statute of this state with regard to railroad crossings is as follows (I read section 807, Revised Statutes of Missouri, as amended on March 27, 1885, Session Laws of Missouri, 1885, p. 87:) "Every railroad corporation shall construct and maintain good and sufficient crossings, where its railroad crosses public roads or town streets \lOW or hereafter to be opened for pUblic use, which crossing shall be constructed out ()f materials and in the manner following: On each side of each rail sball be laid, and securely spiked to the cross ties, a plank of not less than 10 inches in width, and two inches in thickness, nor less than 16 feet in length on all public roads, nor less than.24 feet in length on all streets in towns and cities, to be of good and sound timber. The space between the inside planks shall be filled macadam or gravel, even with the top of the planks; and shall make good and sufficient approaches thereto, of equal width therewith, and
lIn an action brought for the benefit of the widow, for the negligence of a railroad company in causing the death oftbe husband, the jury may consider the age oftbe de-ceased, the injury to his busines.s, his caJ,acity to earn money, his health, and his general condition of life. Clapp v. RailWIlY Co., (Minn.) 29 N. W. Rep. 340. In as 00 measure of llamages for negligently causing death, see Cooper v. RaIlway. Co., (MIch.) 33 N. W. Rep. 306; County of Howard v. Legg, lInd.) 11 N. E. Rep. 612, and note.
of easy grade. 'the same shall be covered with gravel or macadam to a depth of not less than six inphes, and, shall pe substantially and properly joined up to the plank reqUired to be laid 'on the' outside of each rail; provided that such corporation roay roak-!l such road or street to pass under its said railroad where the same can be done with equal convenience and safety to the traveling public. "
I the is material of this case. This statute which, I have just read to you is obligatory upon the defen,dantiIl,this case, its duty with respect to railroad crossings. ' !t is a statute that requires no particular explanation, but I may rema.rk:that it may sometimes happen that Bstreet as dedicated or laid out, is 40, '50, or even 60 Jeet)n width, whereas the part actually graded and traveled over, that is, the road-bed proper, may be much . '. '., narrower, say 24, 20, or even I6,feet. Now, in locating the planking specified by the s4ttute. court instructs you that in a Case such as. I have last supposed,it would be the duty of arailread company to locate the planking on that particular part is graded and traveled over by wagons and veof the hicles. I may further say, gentl.emen,that tbe duty imposed upon a railroad compariy'bythis statuteisn6Nlischarged'by merely putting down such planking as tbe statute describes. It is the duty of a railroad COllipany not only to put down such planking as'is described in the statute, and to locate it in tbat part of the street or road that is' graded and usually traveled over by wagqns alld. vehicles, but it is a,lso its duty to maintain the' planking, after it is 'laid, in a g&od and ordinarily safe condition at all times. ',Ii' A railrolidcompany is this statute for all injuries that may be sustailled by a person without any fault on his part, directly in consequance of a failure eithet to put down planking in the first instance, of the dimensions and quality desCribed in the statute, or by a failure to locate it in that part of the roadway that -is graded and usually traveled over, or by afailure:tokeep the planking in an ordinarily safe condition after it is l\l.id.· " i . Now in this case you must determine from the evidence:
(1) Whether the :defendant, on February 8, 1886, had'such a planking' as thl' statute describes, 24 feet in lengt.h, on the north side of the northerly rail of its track, at the crossing of the Louisiana and Prairieville graveled road in L()Uisialia, Missouri, and whether such planking was laid in that part of the roadtbat was graded and .usually traveled by teams, and was at that time in an OrdInarily safe and ... (2) If you find under the testimony that there was not the requisite length of planking Jaid: at that point or crossing, or if you 'find that there W&S the requisite length of planking, that Is, 24 feet or over, but that it was not laid in that part'of the street that was usually traveled over by teams, or if you find that the planking at that time was not in an ordinarily good and safe "condition. then you must further inquire and determine. from the evidence before you, whether stich lack of planking, or whether its. being out of its proper place'inthe street, or whether'its being i,n a and unsafe conbe, was the of the inju)."y wbi,eJ>, hus:Jm.nd i 81).(1 i£ yO" 11n4 that It was such diate cause, you will then return a verdict in 'favor of tbe plaintiff.
HOGUE 'V, cHIcAGO &: A; R. CO.
On the other hand, gentlemen, if you find that at and before the accident the railroad company had caused to be laid aSlllUch as 24 feet of planking, of the requisite dimensions and quality, described in the statute, atthe point in question, that is, at this crossing; and had located it across the usually traveled portion of the street, and had maintained it in an ordinarily safe condition up to the time of the accident, then that will end the case, and you will find for the defendant. Now, there is another view oJ the case I wish to present to you, and it is this: No person can recover compensation for an injury that is sustained in Jonsequence of the fault or neglect of another person or corporation, if he has by his 'own fault or neglect directly contributed to produce that injury. It follows, gentlemen, that if plaintiff's husband, by any want of ordinary. care or prudence on his part, immediately contributed to the injury sustained, then this plaintiff cannot recover, no may have beenin taking care of this matter how negligent the particular railroad crossing. In this view of the case, I call your carefulattention to the testimony respecting the conduct of the plaintiff's 'husl;ia.'ndashe,approached the crossing in question on the occasion of the oc·inj,ury,.Ifunder the testimony you believe that l,1e to take any precauthm, eitherin driving orin sitting on his wagon, or in looking out for obstructions, that would under all the circumstances ()f the case have been takert 01 a person of ordinary prudence, 'and that such want of care on his part,directly contributed to the iuj ury, thed the verdict in this case should be' for the defendant., . If you believe that he drove the wheel of his wagon against an ex'posed portion' of the iron rail or railroad tie, when he might intheexer'dseof ordina.ry care' as well have driven over the track where it was protected by planking, and thus have avoided the injury, then he was neglligen.t, and the plaintiff cannot recover, no matter what may have been :the negligence of: the railroad company. , There' is still another view of the testimony which you may take in ,this Mse, and therefore l' allude to it.· You may be of the opinion that the plaintiff's husband was not guilty of any negligence, and that the railroad company discharged its' full duty under· the statute in taking :-care ohhecrossing.. If that sbouldbe your view of the case, under the 'evidence, then the injury in question was the result of what is termed in 'law an accident, for which no' one is legally responsible, and in that view 'of the case you must find for the defendant. In the testimony in the case you mU'3t also bear in mind that the presumption of law is that the defendant fully performed the duty ·imposed upon it by law with rl=spect to taking Clire of the crossing, and the burden is on the plaintiff to show,.by a ·that it failed to. discharge that duty in some respect, and unless they have :so shown you must find for the defendant. . In the event that you find the plaintiff is entitled to a vEirdidtjunder the evidence in this case; ana, under these instructions, then the statute · under which this action is bronght.. t,illowsyou toassesslmchdamaKes just) notexceeding$5 1000,hav:ing reference.tothe ·as you 'deem
necessary injury resulting to the plaintiff from the death of her husband." The meaning of that is, gentlemen, that you should determine, as well as youoan, what damage plaintiff will necessarily sustain by reason of the loss of her husband. You may take into account the 'age of her husband, his health and habits of life, and 'his capacity for earning a livelihood for himself and. his family, and from such considerations determine, as well as you can, what would bea fair and just allowance to the widow, -that is to say, what was her necessary loss in consequence of her husband's death.
(Oi'l'cuit Oourt, E. D. Mis8ouri, E. D. Se(ltemoer 28, 1887.)
Wrl'NESs-PntvILEGED COMMUNICATION"-LBTTERS FROM HUBBAND TO WIlrlll.
'fhe Wife's administratorfouud ltJ;llong her papers letters from her husband w:qich lllade against him in a suit in which he was then interested. The admiilistraior;in It spirit of hostility to the husband. delivered the letters to the otherliide, which to use them. Held, that the Jetters were privileged.
On Motion to Strike out Certain Exhibits. Jl}ra(ffnus McGinne88, for complainlUlt. Edward Dunningham, Jr., andl!;clward O. Eliot, for respondents. MILLER, Justice, (wally.) This case was argued on Monday on the motion to strike out certain exhibits filed in the master's report of the testimony in the case. Those exhibits were letters written by one of the defendants to his wife, and the ground of the motion to suppress them is that they are such communications as are protected by the principle which tbe.law throws around communications between husband and wife. I confess I was very much. astonished to find that there are same authoritiesw.hich hold that while the wife cannot be permitted to tell, and not only that, but will be forbidden to tell, what her husband says to her in any matter of marital or private relations, or while the private relation exists she will be forbidden to tell anything,-will not be permitted to tell anything on the stand to the injury of her husband,-I say, I am surprised to find, while that general principle prevails, that there are some authorities holding that where this evidence can be got at, either by obtaining possession of a letter, or some method of overhearing communications by some third party between the husband and wife, that this evidence can be used. We have examined these authorities, and we are satisfied that, as exceptions, they do not include the present case. In the present case the report Qf the testimony shows, concerning the party objecting to the use of these letters written to his wife, that. tuere was something like a separation. between him . and his wife, and proceedings for a divorce were instituted. Pending these proceedings the wife died, and the man who professed to be the e.xecutor or admin-