Burger v. the Missouri Pacific Railway Company
| Citation | 20 S.W. 439,112 Mo. 238 |
| Parties | Burger v. The Missouri Pacific Railway Company, Appellant |
| Decision Date | 15 November 1892 |
| Court | United States State Supreme Court of Missouri |
Appeal from Moniteau Circuit Court. -- Hon. E. L. Edwards, Judge.
Affirmed.
H. S Priest and W. S. Shirk for appellant.
(1) The defendant's objection to the introduction of evidence should have been sustained. The petition does not state a cause of action. Two grounds of action are alleged: First. Violation of the city ordinance by obstructing the crossing over ten minutes. Second. Moving the train without sounding the whistle, ringing the bell or giving other signal. a There is no causal connection between the first act of negligence alleged, viz., obstructing the crossing and the injury. Stillson v. Railroad, 67 Mo. 671; Brown v. Railroad, 20 Mo.App. 222; Hudson v Railroad, 101 Mo. 13; McMahon v. Railroad, 39 Md. 438; Wharton on Negligence, secs. 134, 138, 200; Wyatt v. Railroad, 6 Best & Smith, 709; Railroad v. Frick, 44 Am. & Eng. R. R. Cases, 549; Armil v. Railroad, 28 Am. & Eng. R. R. Cases, 467. b. It was not the duty of the defendant to ring the bell, sound the whistle or give other warning of the movement of the train, under the circumstances alleged in plaintiff's petition. Dahlstrom v. Railroad, 96 Mo. 99; Stillson v. Railroad, 67 Mo. 671. Besides, he was a trespasser on defendant's cars, and defendant owed him no duty, except not to injure him, if it could avoid it, after discovering the perilous situation. Dahlstrom v. Railroad, supra; Railroad v. Plaskett, 26 P. 401. (2) The demurrer to plaintiff's evidence, and to the whole evidence, should have been given, because: First. The evidence showed no better cause of action than that alleged in the petition, and that was insufficient for the reasons stated in point 1. Second. Because the evidence conclusively established that the plaintiff was injured by reason of his own contributory negligence. Corcoran v. Railroad, 16 S.W. 411; Hudson v. Railroad, 101 Mo. 113; Thompson on Negligence, 469; Beach on Contributory Negligence, sec. 72; Rorer on Railroads, 1055; Lewis v. Railroad, 38 Md. 588; Railroad v. Pinchin, 31 Am. & Eng. R. R. Cases, 592. (3) And the fact that the plaintiff was a boy nearly ten years of age does not alter the rule, under the facts in this case. Dlauhi v. Railroad, 16 S.W. 281. (4) The plaintiff's first instruction was wrong, because: First. It makes the obstruction of the street the proximate cause and a responsible element of the plaintiff's injuries. Second. It assumes, in the absence of any evidence that defendant's servants knew of plaintiff's perilous condition, that it was defendant's duty to notify plaintiff before moving the train. (5) It was error to permit the ordinance to be read in evidence. There is nothing in the charter of the town of California authorizing the city council to pass such an ordinance. Session Acts, 1872, p. 317. And it is evident from the face of the petition that the violation of said ordinance was not the proximate cause of the injury complained of. (6) And it was error, under the circumstances of this case, to permit evidence to be introduced that no warning or signal of moving the train was given the plaintiff. Dahlstrom v. Railroad, 96 Mo. 99; Stillson v. Railroad, 67 Mo. 671. (7) And it was also gross error to admit evidence that plaintiff saw others pass between the cars before he did. Defendant cannot be made liable because plaintiff followed the dangerous example of others. (8) The demurrer to the evidence should have been sustained, for the further reason that the evidence does not show that the plaintiff waited at the crossing for the train to move for ten minutes or more. It is not sufficient that the crossing should have been blocked ten minutes, and others prevented from crossing for that length of time, but it must appear that plaintiff was kept at the crossing by the obstruction for ten minutes or more, before attempting to cross between the cars. In other words no one has a right to complain of the crossing being blocked unless he has been detained by it a time beyond the limit in the ordinance. Barkley v. Railroad, 96 Mo. 367. (9) There is no evidence whatever to show that if the bell had been rung or whistle sounded before the train backed, the plaintiff would not have been injured. Crystal v. Railroad, 26 N.E. 1103.
Moore & Williams and Draffen & Williams for respondent.
(1) The objection to the introduction of any evidence was rightly overruled. The petition states a cause of action. Railroad v. Layer, 3 Cent. Rep. 381; Ranch v. Lloyd, 31 Pa. St. 358; Railroad v. Kelley, 31 Pa. St. 372; Murray v. Railroad, 70 Am. Rep. 219; Railroad, v. Horst, 1 Cent. Rep. 95; Railroad v. Fitzpatrick, 35 Md. 32; McMahan v. Railroad, 39 Md. 438; Nagel v. Railroad, 75 Mo. 653; Railroad v. McWhister, 14 S.W. 26; Whitaker's Smith on Negligence, p. 110; Salisbury v. Herchenroder, 106 Mass. 458; Railroad v. Reamy, 42 Md. 117. (2) The injury in this case was to a child. The authorities cited by the appellant are inapplicable. Greater care must be exercised in reference to children than to adults; and proof of a less degree of negligence will be necessary in order to charge a railroad company for injuries to infants than in case of an adult. Thompson on Negligence, sec. 6, p. 452; Isabel v. Railroad, 60 Mo. 475; Railroad v. Gladman, 15 Wall. 401; Railroad v. Stout, 17 Wall. 657. (3) The demurrer to the evidence was rightly overruled. If the boy used that care which may be reasonably expected from boys of his age and capacity, then he was not guilty of contributory negligence, and whether he did or did not use that care is a question for the jury. Williams v. Railroad, 96 Mo. 275; Eswin v. Railroad, 96 Mo. 290; O'Flaherty v. Railroad, 45 Mo. 70; Koons v. Railroad, 65 Mo. 592; Thurber v. Harlem Bridge, 60 N.Y. 326; Duffy v. Railroad, 19 Mo.App. 380. (4) The city of California had authority to adopt the ordinance read in evidence. The general police power given to a city includes the right to prevent the obstruction of the streets of said city. Ten minutes was not an unreasonably short time, considering the constant crossing of footmen and vehicles over the streets in question. Railroad v. Young, 51 Ga. 377; 2 Dillon on Municipal Corporations [3 Ed.] sec. 713. (5) The violation of said ordinance by the defendant was negligence per se, and rendered it liable for all the consequences flowing therefrom. Eswin v. Railroad, 96 Mo. 290; Keim v. Railroad, 90 Mo. 314; Meek v. Railroad, 38 Ohio St. 632. (6) It was competent to show that others had passed between the cars before plaintiff attempted to do so. Railroad v. Layer, 3 Cent. Rep. 381; Thurber v. Harlem Bridge, 60 N.Y. 326; Brown v. Railroad, 50 Mo. 461. It was competent for plaintiff to prove that the cars were suddenly started without notice or warning. Barkley v. Railroad, 96 Mo. 367; Brown v. Railroad, 50 Mo. 461. (7) The jury having under proper instructions found that the plaintiff, as a child, was not guilty of contributory negligence, that question is eliminated from the case as a proximate cause of the injury, and the negligence of defendant remains as the primary and responsible cause. Defendant must answer for the consequences of such negligence. 4 American & English Encyclopedia of Law, pp. 42-47; Adams v. Railroad, 100 Mo. 555; Whalen v. Railroad, 41 Am. & Eng. R. R. Cases, 558; Railroad v. Young, 81 Ga. 397; Haniman v. Railroad, 12 N.E. 451; Powers v. Harlow, 53 Mich. 508; Saare v. Railroad, 20 Mo.App. 215; O'Mara v. Railroad, 38 N.Y. 445; Cooper v. Railroad, 10 West. Rep. 184; Collins v. Railroad, 142 Mass.; 2 Rorer on Railroads, 1018.
Plaintiff who is an infant prosecutes this suit by his next friend to recover damages from defendant for personal injuries resulting from the alleged negligence of its employes.
He obtained judgment in the circuit court and defendant appealed.
After the formal allegations the petition charged in substance that on the third day of May, 1889, defendant negligently and carelessly obstructed the crossing of one of the public streets of the town of California, known as Oak street, by standing one of its trains across it more than ten minutes, in violation of an ordinance of said town; that plaintiff was a boy between nine and ten years of age and lived with his father on the south side of the railroad; that over this street was his usual way to the public school, which he was attending and which was situate on the north side of the railway; that, when plaintiff on his way to school on said day reached said crossing, he found a train standing across it; after waiting for some time for it to be moved or uncoupled, on seeing grown persons pass between the cars he attempted to go through also; that being so young he did not, under the circumstances, anticipate any danger; that, when he had gotten partly over, the defendant's servants carelessly and negligently caused said train to back up, without ringing the bell or sounding the whistle, or giving any signal of starting, by reason whereof he had no notice of the intended moving of said train; that it was defendant's duty, under the laws of this state, to give such signal before starting the train; that, by reason of such carelessness and negligence, plaintiff's right foot was caught between the drawheads of said cars and crushed, and had to be amputated.
The sufficiency of this petition to declare a cause of action was questioned, on the trial, by objection to any testimony thereunder, and again, after verdict, by motion in arrest of judgment. These objections were overruled, and the action of the court in doing so is assigned as error in this court.
I. It is first objected that the petition shows no causal connection...
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