147 Mo. App. 414 | Mo. Ct. App. | 1910
This is a suit for damages alleged to have accrued to plaintiffs, under the statute, through the negligent killing of their infant son by defendant. Plaintiffs recovered and defendant appeals.
It appears the defendant owns and operates a railroad running east and west through the town of Greenwood in St. Louis county. At the point where the little child lost his life, it maintains two parallel railroad tracks. The evidence tends to prove that Sutton avenue in the town mentioned is used by the public and that a wagon crossing had been constructed across the railroad thereon. On its north track, defendant had standing several empty cars immediately adjacent to Sutton avenue and about sis or seven feet from the west side of the street crossing. The one nearest the crossing was a coal car. The theory of plaintiffs’ case is that
However, the judgment must be reversed and the cause remanded for the reason the court submitted the case- on at least one theory not relied upon in the petition. The petition charged that the infant, Willis Compton, was lulled ££at or near a crossing, which
Besides submitting the question of defendant’s liability by instruction on the theory presented in the petition the court gave, at plaintiffs’ instance, a second instruction whereby liability against it was predicated on the theory of the “turntable cases.” The first instruction for the plaintiff authorized a recovery if the child was on the crossing, in the act of passing over the -tracks on the public highway and came to
“Even though you believe from the evidence that said Willis Compton was trespassing upon the property of defendant by climbing upon and hanging from said car, yet if you believe and find from the evidence that the part of the car to which he had attached himself was upon or very near said crossing, and said car was standing still, and was from its situation calculated to attract children thereto, and that this was known or might have been known to defendant by reason of its experience as a railroad company, the plaintiffs are still entitled to recover, if you believe and find from the evidence that defendant left said car in such a situation unguarded, and. if you further' believe and find from the evidence that said Willis Compton was injured and killed by the negligence of defendant, as elsewhere indicated in these instructions, your verdict should be for the plaintiffs.”
This was error, for a person may not count upon one cause of action and recover upon another even though the other would be a good cause of action if properly pleaded. The instructions authorizing a recovery should limit the elements of liability to the
However, the instruction submitting the “turntable doctrine” in part at least as a predicate for recovery was furthermore erroneous for the reason the .doctrine is not pertinent on the facts in proof. Of this it may be said the car was not upon the crossing so as to present the element of nuisance, but instead it was six feet therefrom on defendant’s property. Under these circumstances the obligation of ordinary care required no more in this case than that defendant should not move it suddenly forward without proper warning unless its servants either saw, or by exercising due care, might have seen the situation and peril of the child. The doctrine of the “turntable cases” is substantially to the effect that turntables are dangerous machines in and of themselves and are peculiarly attractive to children. They stand as an exception generally to the law of negligence for the reason the person injured thereabout is a trespasser upon the property of the owner of the machine. The grounds of liability which the courts have asserted in those cases proceed from the facts that danger inheres in the institution itself and being peculiarly attractive to children, they operate as an implied invitation exciting the childish instinct to examine and play about the same. Therefore, when left unguarded, even though upon the private property of the railroad, they are treated, from the standpoint of children, as attractive nuisances tending to invite the child to play about them and to entail injury unless properly inclosed or otherwise guarded. [Berry v. St. Louis, M. & S. E. R. R. Co., 214 Mo. 593, 114 S. W. 27; Koons
The doctrine of these cases is not to he invoked however with respect to railroad cars standing npon their private switches, for snch cars, even though unguarded, are not liable to he moved by and inflict injury upon small children. In other words, the extraordinary dangers which inhere in unguarded, unfastened and exposed turntables is not present in a car standing upon the side tracks and besides such cars are not so inviting to children as playthings. On the reasoning indicated, our Supreme Court has pointedly declared the doctrine of the “turntable cases” not relevant to railroad cars standing upon the tracks in the yards of the company. [Barney v. H. & St. J. R. R. Co., 126 Mo. 372, 28 S. W. 1069.] That the doctrine may not be extended promiscuously to all situations more or less dangerous, which are in some respects inviting to children and maintained by the owner upon his own premises, see Kelly v. Benas, 217 Mo. 1, 116 S. W. 557.
The judgment should be reversed and the cause remanded. It is so ordered.