Curley v. Missouri Pacific Railway Co.
| Decision Date | 04 February 1889 |
| Citation | 10 S.W. 593,98 Mo. 13 |
| Parties | Curley v. The Missouri Pacific Railway Company, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Geo. W. Lubke Judge.
Reversed.
Bennett Pike for appellant.
The demurrer to the evidence should have been sustained. Woods v. School District, 44 Iowa 27; Railroad v. Henigh, 23 Kan. 347; Railroad v. Connell, 88 Pa. St. 520; Railroad v. McLaughlin, 47 Ill. 265; Lehey v. Railroad, 3 Rob. (N. Y.) 204; State v Railroad, 24 Md. 84; Bannon v. Railroad, 24 Mo 108; Railroad v. Sinclair, 62 Ind. 301; Railroad v. Hull, 72 Ill. 222; Railroad v. Ward, 4 Col. 30; Canley v. Railroad, 2 A. & E. R. R. Cases, 4; Hoag v. Railroad, 85 Pa. St. 293; Lewis v. Railroad, 18 A. & E. R. R. Cases, 263; Blake v. Newfield, 68 Me. 365; Poeppers v. Railroad, 67 Mo. 725.
G. M. Stewart for respondent.
Whether or not the plaintiff (respondent) was guilty of contributory negligence, such as to exonerate the appellant from liability, was a question of fact for the jury to determine, after receiving from the court proper directions as to how they should apply these facts. Frick v. Railroad, 75 Mo. 595; Scoville v. Railroad, 81 Mo. 434; Donohoe v. Railroad, 83 Mo. 543; Petty v. Railroad, 88 Mo. 306; Keim v. Railroad, 90 Mo. 314. Contributory negligence is not set up as a defense in the case, and hence can only avail the defendant by way of deduction or inference from plaintiff's evidence. Buesching v. Gas Light Co., 73 Mo. 219; Stephens v. City of Macon, 83 Mo. 345. The demurrer to the evidence was properly denied.
In this action, the plaintiff, who is a minor, sues by his next friend for damages for personal injuries sustained by him in being shoved out of one of defendant's freight cars while in motion on the levee near Poplar street in the city of St. Louis. In the court below he obtained a judgment for three thousand dollars, from which the defendant appeals.
On the trial, the defendant, at the close of plaintiff's evidence, demurred thereto. Its demurrer being overruled, the defendant then offered evidence, and at the close of the whole evidence, asked the court to instruct the jury that on the evidence and the pleadings in the case the plaintiff could not recover. The court refused this instruction, and submitted the case to the jury. The questions arising on the record can be determined on this ruling.
At the time of the injury, the defendant had tracks laid on the levee fronting the Mississippi river in the city of St. Louis. On the afternoon of the day of the accident, its servants were engaged in making up a train of empty grain cars on these tracks, to be pulled out towards the Union Depot. In doing this, they first threw in on one of these tracks seven of these cars, and left them standing, some of them with their doors open. They then pushed four more back into the elevator and afterwards ran around with them and coupled on to the seven standing cars, and the train of eleven cars thus made up started off on the trip in which the plaintiff was injured. About twenty minutes intervened between the time when the seven cars were left standing on the track and the time when the other four were coupled to them.
The movements of the plaintiff, who at the time of his injury was about ten years of age, are thus given in his testimony in chief before the trial court: "On the morning of the accident, seven years ago, I went with some boys down to the river to see a boat race; I got a drink of ice water on the ferry boat there, then went up on the river bank where we stayed for five or ten minutes, then we saw some boys in a car and we got into the cars and took a seat; the train came bumping back and we were frightened; don't know how many boys there were on the cars; Martin Stanley and Gus Proehl were the boys with me; we were sitting down in the car when it started up; as soon as the train started we got up and the boys were so frightened that they began shoving one another around in the car, and just as the car was about to turn, some one of the boys gave me a shove and my coat caught on a nail and I fell, and went right under the wheels; the car cut off both of my legs; didn't see any engine when I got on the car; didn't hear any whistle or ringing of the bell when the engine coupled on to the cars; didn't know that there was an engine attached to the cars until I felt the bumping; I got on the car at Chouteau avenue and was thrown off at Poplar street, as the train was going west on Poplar, right where the train bends on Poplar street; the engine was already on Poplar street; I was pushed off of the car by some one of the boys; don't know which one pushed me; the boys were all pushing one another around the car when it started; I was facing towards the river; I had my back to them when some one gave a shove and I went head first, my coat could not hold me and turned me around; the boys were pushing one another because they were anxious to get off the car; didn't know any of the boys except the two I spoke of."
Proehl and Stanley, the companions of the plaintiff, who testified on the trial, give substantially the same account of the accident, and both say they did not see the engine or hear the bell rung or whistle sounded.
Seven years intervened between the injury and the trial in the circuit court. In the interval the conductor and engineer died. The other two of defendant's servants who were engaged in the management of defendant's train testified. Swift, the switchman or helper, testified that he got on the rear car as soon as he coupled all the cars to the engine and gave the signal to go ahead; that he didn't see anybody on or around the cars, when he gave the signal to start. Couldn't say whether the bell was ringing or not as the engine was blowing off steam at the time. Blinn, the fireman, testified that the bell was ringing; that he was ringing it, didn't see anybody on the cars, looked to see, and didn't know there was anybody in the cars.
The gravamen of the charge in the petition is that defendant, knowing that plaintiff was in one of its empty cars in the train, or when by the exercise of ordinary care it might have known that he was in one of them, without warning, coupled its motive...
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