91 Mo. 33 | Mo. | 1886
The plaintiffs, who are husband and wife, brought this suit to recover statutory damages for the loss of their child, a boy eleven years old, who was run over and killed, by the defendant’s cars, in the city of St. Louis. At the close of the evidence, the defendant prayed for an instruction in the nature of a demurrer to the evidence, which was refused, and this ruling
"Section 26. It shall not be lawful, within the limits of the city of St. Louis, for any car, cars, or locomotive, propelled by steam power, to obstruct any street crossing by standing thereon longer than five minutes, and when moving, the bell of the engine shall be conr stantly sounded within said limits, and if any car, cars, or locomotives, propelled by steam power, be backing •within said limits, a man shall be stationed on the top of the car at the end of the train furthest from the engine to give danger signals, and no freight train shall, at any time, be moved within said limits, without it be well manned with experienced brakemen, at their posts, who shall be so stationed as to see the danger signals and hear the signals from the engine.”
The petition states that the defendant’s agents backed a freight train down to and against a box car, upon which the boy was standing, causing him to fall off and the trucks of the car to run over and crush his body ; that the moving freight train was propelled by a steam engine, the bell of which was not constantly sounded while the engine was moving the train; that the agents of defendant backed the train on Levee street, without having a man stationed on the top of the train furthest from the engine, to give danger signals;' that the train was not well manned, with experienced brakemen, at their posts so as to see and hear the signals.
The evidence shows that, from Chouteau avenue, on the north, to Convent street, on the south, the defendant has six or seven parallel tracks, next to the river bank, and on and along the levee. The space thus occupied is used for no other purpose, and is called the Chouteau avenue yard. These tracks are connected
The evidence for the defendant shows that the car on which the boy was standing stood on the first track. To the north, and disconnected with it, and on the same track, were several other cars. Two empty box cars, belonging to a train of four or five cars, were detached at Chouteau avenue by the engine “giving the slack.” Kelley, a brakeman, got upon the two detached cars and rode them down,the incline, at the same time applying the brake to keep them from going too fast. When he got within six or seven feet of the standing cars, he got down and made the coupling. These standing cars moved on and ran against the car on which the boy was standing and moved it a short space — half a car length. The fireman says he rang the bell constantly, whenever the engine moved. Plaintiffs lived within three or four blocks of these tracks, and the boy was, at the time, playing upon the car.. He had previously been ordered away, but there is no evidence tending to show that the employes knew that he was about the cars at the time of the accident.
It is to be observed, the. cause of action is not
The judgment is, therefore, reversed.