Cadmus v. St. Louis Bridge & Tunnel Co.

• Decision Date: 29 January 1884
• Citation: 15 Mo.App. 86
• Parties: EMMA S. CADMUS, BY HER NEXT FRIEND, Respondent, v. ST. LOUIS BRIDGE AND TUNNEL COMPANY, Appellant.
• Court: Missouri Court of Appeals

15 Mo.App. 86

EMMA S. CADMUS, BY HER NEXT FRIEND, Respondent,

v.ST. LOUIS BRIDGE AND TUNNEL COMPANY, Appellant.

St. Louis Court of Appeals, Missouri.

Jan. 29, 1884.

APPEAL from the St. Louis Circuit Court, BARCLAY, J.

Affirmed.

S. M. BRECKINRIDGE and MILLARD F. WATTS, for the appellant: There is no proof to sustain the allegation of the appointment of next friend.-- Porter v. Railroad Co., 60 Mo. 160; Sherman v. Railroad Co., 72 Mo. 60. The demurrer to the evidence should have been sustained.-- Henry v. Railroad Co., 76 Mo. 282; Powell v. Railroad Co., 76 Mo. 83; Commissioners v. Clark, 94 U. S. 284. The contributory negligence of the plaintiff was such as to prevent a recovery.-- Cauley v. Railroad Co., 95 Pa. St. 398; Moon v. Railroad Co.,99 Pa. St. 301; Stillson v. Railroad Co., 67 Mo. 671.M. J. SULLIVAN and L. R. TATUM, for the respondent: Proof of the appointment of next friend is unnecessary.-- Jones v. Steele, 36 Mo. 324; Robinson v. Hurd, 67 Mo. 660; Rodgers v. Marsh, 73 Mo. 64. Though the plaintiff was guilty of some negligence which remotely contributed to the injury, yet, if the defendant, by the exercise of ordinary care, could have prevented the injury, it is liable.-- Burnham v. Railroad Co., 56 Mo. 338; Megher v. Railroad Co., 59 Mo. 223; Walsh v. Telegraph Co., 52 Mo. 434; Harlan v. Railroad Co., 65 Mo. 22; Frick v. Railroad Co., 75 Mo. 597.

BAKEWELLL, J., delivered the opinion of the court

This is an action brought by a minor, by her next friend, for damages for injuries done to her by being struck by a locomotive of defendant, operated by the servants of the defendant. The answer of the defendant was a general denial. There was a verdict and judgment for the plaintiff for $1,000.

The testimony is voluminous, and, in many important respects, quite contradictory. There was testimony tending to show the following state of facts:--

The plaintiff, who was a girl about five years old at the time of the accident, lived with her parents in one of a row of houses on the east side of Tayon Avenue, south of Clark Avenue. The lots on which this row of houses was erected were each about fifteen feet in width, and ran back east one hundred and fifty feet to the yard of the defendant, which seems to have occupied the remainder of the block from Poplar Street on the south to Clark Avenue on the north. These lots were fenced on the east end. This fence left a narrow passage-way between the tracks of the defendant, which passage was extended south to Poplar Street. The house north of the Cadmus house was occupied by a Mrs. Brown. The fence of this lot had been knocked down by a locomotive of the defendant and put up again by the defendant in such a way that it stood a little back from the true eastern end of the Brown lot. The distance between the rails of the defendant's track and the Brown fence was about two feet and a half, and the defendant's track made a curve towards Tayon Avenue about that point. Neither side offered in evidence any plat of the ground. The distances were often indicated by the witnesses by gestures and by reference to distances in the court-room, and, as the matter was referred to again and again in the direct and cross-examinations of several witnesses, it is difficult to make a statement of the exact lie of the ground which will in all respects satisfy everything that was said about it. On the morning of the accident, which was in September, the street in front of the Cadmus house was being torn up for the reconstruction of the bridge over the railroad tracks, and the sidewalk was partly torn up for the purpose of laying gas pipes, and partly incumbered by material for the bridge. According to the testimony for the plaintiff, it was quite impassable, except by methods that were dangerous for any but very active persons, and the Cadmus children had been directed by their parents to go out by the back way because of this dangerous condition of the sidewalk. The youngest child, the plaintiff here, was going to a school on Fifteenth and Pine Streets, northeast from the house in which she lived. It would have been possible to reach the school by going along the back fence to Poplar Street on the south and then to Clark Avenue on the west, and thus to have avoided the crossing at which the plaintiff was hurt; and by going this roundabout way and keeping close to the fence, danger from the locomotives might have been avoided. The plaintiff set off to school with her elder sister Tilly, a child of about eleven. Tilley is the only witness who saw the accident, and her testimony as to what occurred is as follows, when thrown into narrative form:--

“Emma received the cut across her forehead from the engine which was coming from Clark Avenue; we were right by Mrs. Brown's fence. Mrs. Brown lives in the corner house. The engine was backing from Clark Avenue. I sent my little sister through first, and I went through after. She wasn't half through when the engine came and struck her--through that fence, at the corner--right at the corner there. The engine struck her right here, on the back part of the head. She couldn't do nothing. She fell against the fence. I picked her up and carried her to the gate. No one else was around that I seen. It was just about that far (measuring) from the corner of the fence to the track where we were going through. She was all bleeding; the blood was all over her face. Her body was all bruised up, black and blue on this (the right) side. The engine was number 5. I saw the number. It switches there. Question. State whether you heard a noise up the track just before the little girl was struck? Answer. No, I did not. There was no bell ringing, nor anything else. Q. State whether or not you saw any person on the engine? A. There was no brakeman; not that I seen. Q. What was with the engine? A. There were some boxcars on it.” On cross-examination, the witness said, in reference to her expression about sending her sister “through first:” “I wanted her to go first--to go through by the side of the fence--by the track. I mean I sent her in between the iron rails and the fence, through that narrow way first, before me, because I wanted her to go through first. Of course there was trouble there. If the engine came down, some one might get killed, and so I sent her through first, and stood and watched her. She was not half way through when the engine came. I was going just behind her. The part above the steps struck her. It knocked her against the fence. The engine was backing out from Clark Avenue.”

It appears from this statement that the two children turned to the left on leaving their back gate, and were making for Tayon Avenue between the fence and the track when plaintiff was caught in the middle of the narrow passage, about fifteen feet long, between the Brown fence and the track, just beyond the point where the track makes a curve, as will more plainly appear from the following tracing:--

TABULAR OR GRAPHIC MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE

It further appears from the testimony that the engine in question had just gone up towards Clark Avenue, pushing these flat cars which it had left, and it was returning “light,” or without any cars attached, as all the witnesses say, except the one whose testimony has just been set down. The engine had its regular “crew,” according to the defendant's witnesses, of five or six men needed for the work in which it was engaged. The fireman and engineer were at their places; the foreman was standing on the pilot of the engine, which, as the engine was reversed, was then the hind part. He was looking in the direction in which the engine was going. The other men were together on the front of the engine, which was really the back part at the time of the accident, as it was going backwards. The engine was a transfer engine, made for use in the tunnel, with a low, sloping tender and a headlight at each end. The engineer and fireman could see in either direction. None of the men on the engine saw the children except Whalen, the fireman. He says he saw them in the passage-way between Brown's fence and the track, but gave no signal, because he thought they were in no danger. The engine was going slowly--about two or three miles an hour. No witnesses swear positively that the bell was ringing, though some of the defendant's witnesses say that it was the custom to ring the bell. One witness for the defendant says he did not notice whether it was ringing or not, and one witness says that he thinks he would have noticed it if the bell was not ringing, and that he does not remember that it was not ringing.

It is clear from all the testimony that a man, or even a child, caught in the narrow passage fifteen feet long, between the Brown fence and the rails of the defendant's track, must, almost necessarily, have been struck by the engine. The distance from the fence to the rail was only thirty inches. The testimony is that the projection of a car over the rail is twenty-two inches, so that only about eight inches would be left clear between a car and the fence. The exact projection of this locomotive is nowhere stated, so far as I remember. I have read the entire testimony. There is nothing to show that the steps of the locomotive do not project as far as those of a car. A witness for the defendant states that...