Rushenberg v. St. Louis, I.M. & S. Ry. Co.

• Decision Date: 14 March 1892
• Citation: 19 S.W. 216,109 Mo. 112
• Parties: Rushenberg et al., Appellants, v. The St. Louis, Iron Mountain & Southern Railway Company
• Court: Missouri Supreme Court

19 S.W. 216

109 Mo. 112

Rushenberg et al., Appellants, v. The St. Louis, Iron Mountain & Southern Railway Company

Supreme Court of Missouri, First Division

March 14, 1892

Appeal from St. Louis City Circuit Court.

Affirmed.

Virgil Rule for appellants.

(1) A railway company offering an attraction to children to play about its dangerous machines or agencies, exposed in a locality where it is accessible to them, will be liable for injuries resulting therefrom. Fink v. Furnace Co., 10 Mo.App. 69; Stout v. Railroad, 2 Dill. 294; Ostertag v. Railroad, 64 Mo. 421; Lynch v Nurdin, 1 Q. B. 29; Crafton v. Railroad, 55 Mo 580; Morrow v. Railroad, 29 Mo.App. 437; Brown v. Railroad, 27 Mo.App. 398; Koons v. Railroad, 65 Mo. 592; Nagel v. Railroad, 75 Mo. 653; Schmidt v. Kansas, etc., Co., 90 Mo. 293; Whittaker's Smith on Negligence, 414-416 (cases reviewed); Beach on Contributory Negligence, p. 132, et seq.; 2 Thompson on Negligence, 1186, note, 1196. (2) It is for the jury to consider the age and circumstances of the child in each particular case, and say whether or not he was able to comprehend the danger of his situation, and, therefore, be guilty of negligence. Fink v. Furnace Co., 10 Mo.App. 69; Nagel v. Railroad, 75 Mo. 653; Saare v. Railroad, 20 Mo.App. 211; Dwyer v. Railroad, 12 Mo.App. 597; Ostertag v. Railroad, 64 Mo. 421; Donahoe v. Vulcan, 7 Mo.App. 501; Whittaker's Smith on Negligence, 414-416. (3) If defendant's servants in charge of its train knew or by the exercise of reasonable care might have known that deceased was in a place of danger it was their duty to use every precaution to prevent injuring him. Frick v. Railroad, 75 Mo. 610; Donahoe v. Railroad, 83 Mo. 55; Williams v. Railroad, 96 Mo. 280 (and cases cited); Roland v. Railroad, 36 Mo. 484.

H. S. Priest and H. G. Herbel for respondent.

The petition does not state a cause of action; it does not allege that respondent loaded or unloaded the cars; does not even charge that the cars were unloaded in a negligent manner. The mere fact that respondent might have discovered plaintiffs' son under the cars if its employes had searched for him does not furnish a ground of action, because no duty existed to look for him. Railroad v. Hurt, 13 S.W. 275; Curley v. Railroad, 98 Mo. 17; Corcoran v. Railroad, 16 S.W. 411. But even children cannot recover unless there is negligence, and there can be no negligence without a breach of duty. Railroad v. Plasket, 26 P. 401; Railroad v. Schwindling, 8 Am. & Eng. R. R. Cases, 546.

OPINION

Sherwood, P. J.

Action for $ 5,000 damages brought by father and mother as plaintiffs against the defendant company, for causing the death of their minor son on the twenty-third day of June, 1888, who was crushed beneath a carwheel while standing under one of a long train of freight cars on the defendant's tracks which extend north and south on First street at its intersection with Cherokee street.

The cars, it seems, were loaded with ice and while being unloaded, pieces of ice fell under and around the cars, whereby children were attracted there, and were accustomed to be attracted there by such ice, gathering the same; that while said minor was gathering ice, with other children of tender years, about and under said cars, thus standing on the tracks, the defendant carelessly and negligently bumped a long train of cars against the cars standing on the said tracks, so that said minor was caught under the wheel of the standing cars, receiving fatal injuries.

Stated at large, the allegations of the amended petition, omitting formal parts, were the following: That defendant now, and at the times hereinafter set forth, owned and operated, or had under its immediate charge and control, a certain railway and tracks extending north and south, along and upon First street, at its intersection with Cherokee street in said city, and at said times kept long trains of cars standing on, and run its cars and locomotives back and forth over, the said track.

"And plaintiffs state further, that on or about the twenty-third day of June, 1888, and for a long time prior thereto defendant company, by and through its employes, agents and vice-principals, kept long trains of cars standing on said tracks for the purpose of having them loaded with and unloaded of ice; that by the manner in which the said cars were loaded and unloaded pieces of the ice fell under and around said cars, and by reason thereof children of the neighborhood, including said Rushenberg, deceased, then about eight years of age, were attracted there and induced to congregate under and around the same for the purpose of gathering said pieces of ice; that the said cars were machines or agencies, dangerous in their very nature and character, and that the said pieces of ice offered an attraction to children to come there for the purpose of gathering the same, and their location under and around said cars made it a place dangerous for children to be near; that by reason of said attraction, said place became resorted to by the public, and children of tender years, including the said Rushenberg, deceased, who were accustomed to congregate around and under the said cars; and that all these facts were known, or by the exercise of reasonable care might have been known, to defendant company, but that, notwithstanding the premises, defendant in...