96 Mo. 367 | Mo. | 1888
In this case the plaintiff, who is an infant (aged about six years at the time of his injury), obtained a judgment against the defendant for seven thousand dollars, from which the defendant appeals.
The petition, after averring defendant’s corporate .existence, alleges in substance: “That the defendant, while operating its railroad by its servants, drew a train of freight cars on a side.-track at one of its stations, to-wit, at the town of Greenwood, in Jackson county, so as to wholly obstruct the approach to its said station, for half an hour ; that while said train was standing on said side-track, one of defendant’s passenger trains arrived at said station; that plaintiff, desiring and intending to reach said depot and the platform thereat, by the usual approach thereto, attempted to cross its said track ; that owing to the fact that its said approach to its said station and platform was thus obstructed by defendant’s freight train which defendant had carelessly, negligently and wrongfully left standing on said side-track, plaintiff was unable to reach said depot by the usual approach thereto ; that in order to reach, and for the purpose of reaching the depot, plaintiff was compelled .to pass, and attempted to pass around said freight train ; that at the time there were standing on a side-track southwest of said freight train, and but a few feet distant therefrom, a number of defendant’s freight cars ; that in order to pass around the freight train, it was necessary for plaintiff to pass between said stationary cars and said freight train; that while plaintiff was so between said stationary cars and said freight train, defendant’s servants and employes carelessly and negligently started to move said freight train from said station, and in so doing carelessly and negligently ran the samé over plaintiff, and greatly injured and maimed him by crushing his right arm under the wheels of said
Defendant’s answer is a general denial, and further pleads that at the time of the happening of the injuries to the plaintiff, he was attempting to steal a ride on the freight train aforesaid ; that he took hold of and on to a portion of one of the freight cars until it had acquired a considerable speed, when he attempted to leave the car, and in so doing he fell and the wheels passed over his arm; that he had, prior to that time, constantly been in the habit of climbing upon and clinging to the cars about the depot, and had been repeatedly told not to do so, and warned of the danger to him; that the father and mother of plaintiff, he being a boy of about six years of age, were guilty of negligence in permitting him to go about the defendant’s depot and tracks, where dangerous and ponderous machinery is used, without being in charge of some other person, and in directing and sending him there, and in allowing him to ride upon and cling to the trains as aforesaid.
Plaintiff’s reply is a general denial. On the trial the defendant objected to the introduction of any evidence on the part of the plaintiff on the ground that the petition does not state a cause of action. Its objection wa^overruled. At the close of plaintiff’s testimony, defendant demurred to it for insufficiency, which was overruled, and at the close of all the evidence asked the court to instruct the jury, ‘ ‘ that under the pleadings and all the evidence in the cause the plaintiff cannot recover,” which was refused, and the case submitted to the jury on the instructions given, after refusal to give several of those asked by the defendant.
The uncontradicted evidence was: That passing in front of the depot at the town of Greenwood, the defendant has three tracks six feet ten inches apart (a main track, and two switches, one for passing trains, the
The plaintiff’s testimony was in substance that, during the day on which he was hurt, he was at school; that about half-past four in the afternoon, after school was dismissed, he started down to the depot to get- a paper; that he did not go to the public crossing, but went to the depot crossing, near the grain-house ; that he found that á freight train was across the crossing and he could not get across; that he started to go around the train in front of the engine ; the train' commenced to move and he then started back towards the caboose, to go around by the road up to the postoffice to get the paper, “ran
The evideilce for the defendant tended to prove that after plaintiff started to go round the freight train, it began to move and he took hold of the iron- ladder running up the side of one of the cars, drew himself on to the ladder, and clung there until the train got to going pretty fast, when he jumped off, stumbled and fell,, threw his arm out and the train ran over it. This is the substance of the testimony of the three young companions of the boy who were with him at the time. The defendant’s testimony further tended to prove that plaintiff was frequently about the depot, and sometimes on the cars, and that he had previously been warned not to get on them ; that the men on the train did not see the boy on this occasion, did not know and did not hear of the accident until several months afterwards.
Conceding that the negligence of the father, in sending so young a boy to the depot for his paper, cannot be imputed to th.e boy in this action, and that he is to be held only to that care and prudence to be reasonably expected of a boy of his age and understanding, a recovery in this case upon the pleadings and this evidence could be had only upon the ground that the injury was proximately caused by the negligence of defendant’s • servants either (1) in stopping its freight train on the
I. The failure of defendant’s servants to open a passway at the public crossing was in no way connected with the injury. There is no evidence tending to show that the plaintiff desired, intended or at any time attempted to cross the tracks at the public crossing. He was not a traveler on the public highway. He went to a point near the grain-house lot to cross the tracks at the depot crossing. That was the crossing he intended to cross and its being blocked was what deflected his •course. While, in view of the purpose for which that ■crossing was made, and the use of it by the ]6ublic as an-approach to the depot, it was the duty of the defendant’s servants at all times, in the management of its trains, when approaching, while ón and when leaving it to exercise a care and caution commensurate with the danger naturally arising from such use, it was not their' duty to keep it constantly open. Erected for the convenience of the public to approach and transact business with the railroad, its use to some extent must be subordinated to the exigencies of that business. In-order that the company’s servants may transact that business expeditiously and without danger to passengers that may be on its trains, or to persons who may be desirous of crossing its tracks to the depot, it will at times be absolutely necessary that such crossing should be blocked for a time. Nothing can be more reasonable than that a train due at a passing station should remain on a track erected for that purpose until the train due there from the opposite direction passes.
II. It may be conceded that when a train has been standing for a period of twenty or thirty minutes on a track, at a depot, at a village or town over an approach to the depot, that it is the duty of those in charge of the train to give a proper signal of their intention to start, so that those who may be on or about the track may be warned of approaching danger in time to get out of the way of the moving cars, and that those who are about going in the way may refrain from so doing. And where an injury is received by a person who goes in the way of any of the cars, or being in, fails to get out of the way in time, not knowing that the train is about to start, or is in motion, relying upon the duty of the servants of the railroad company to give such signal, and it is not given, such injury being the proximate effect of such failure, a recovery may be had. But where one is injured, who is not in the way of the cars when they start, or when they are moving, and who does not go in the way either before or after they start, or even attempt to do so because of his ignorance that they are going to start or are in motion, who is not injured by the starting of the train, knows it has started and is in motion, and is not injured by the train while in motion until he is thrown in its way by some other agency, it is plain to be seen whatever other, if any act of negligence of the defendant’s servants may have contributed to the injury, the failure to give the starting or moving signal, could not have
III. Prom what has been said, it will be seen that if the plaintiff can recover at all, it must be upon the ground either that at the time the train started he was in such a situation that the starting of the train was perilous to him and defendant’s servants knew it, or .by the exercise of reasonable care might have known it, or that after the train commenced to move, he was in a perilous situation, and that defendant’s servants knew it, or by the exercise of reasonable care might have discovered it in time to have stopped the train and prevented the injury. There is no evidence in the case that
This is the view the evidence of the plaintiff presents of the circumstances that attended the injury. Can it be said that the conductor, in view of his duty to move his train, and to act with that promptness that the nature of the business requires, has been guilty of carelessness in starting the train, or that there was any
The judgment is therefore reversed for the refusal of the court to so instruct.