Stanley v. Union Depot R. Co.

• Decision Date: 14 March 1893
• Citation: 114 Mo. 606,21 S.W. 832
• Parties: STANLEY et ux. v. UNION DEPOT R. CO. et al.
• Court: Missouri Supreme Court

21 S.W. 832

114 Mo. 606

STANLEY et ux. v. UNION DEPOT R. CO. et al.

Supreme Court of Missouri, Division No. 2.

March 14, 1893.

STREET RAILROADS — INJURIES TO PERSONS ON TRACK — REMOTE AND PROXIMATE CAUSE.

1. In an action against a street-car company, a construction company, and a city for causing the death of the minor son of plaintiffs, it appeared that the construction company, under contract with the city to put in a street sewer, had so obstructed the street that foot passengers were obliged to pass through an opening left in the material to a space near the car tracks, about five feet wide. Plaintiffs' son passed through the opening, and stepped in front of a street car, and was killed. Held, that the court properly refused to instruct that if the servants of the street-car company knew or could have known that the situation on the street made it especially dangerous for foot passengers to pass through the opening on to the space near the track, and because of their failure to exercise a vigilance corresponding to the increased danger, plaintiffs' son was killed the street-car company would be liable, since, if the instruction called for ordinary care, it had been given in other instructions, and if it called for more than ordinary care it was improper.

2. In such case the evidence fails to show the liability of the construction company or the city, since their acts were at most a remote cause of the injury.

Appeal from St. Louis circuit court; Daniel Dillon, Judge.

Action by Edmund B. Stanley and wife against the Union Depot Railroad Company, Heman Construction Company, and the city of St. Louis to recover damages for causing the death of plaintiffs' minor son. There was judgment in favor of the street-car company and against the construction company and the city, and the two last-named defendants and plaintiffs appeal. Reversed.

The other facts fully appear in the following statement by GANTT, P. J.:

This is an action of E. B. Stanley and wife for damages for killing their minor son, Edward W. Stanley, on 25th June, 1890. The petition alleges that plaintiffs are husband and wife; that Edward W. was the minor son, about seven years old; that each of the defendants are corporations organized under the laws of this state, the city of St. Louis being a municipal corporation, and the Union Depot Railroad Company and the Heman Construction Company business corporations; that Twelfth street was, prior to the 25th of June, 1890, one of the public highways of the city of St. Louis; that on and prior to said date the Union Depot Railroad Company owned and operated a street railroad along Twelfth street, between Spruce street and the Twelfth street bridge, drawn by horses; that prior to said date the Heman Construction Company, with the knowledge of the other defendants, dug a deep ditch in said Twelfth street between Spruce street and the bridge, and negligently, carelessly, and unskillfully piled the granite paving which it dug up out of said street in a large pile and wall many (to wit, five) feet high, parallel with and alongside of said railroad track, and so close as not to afford room for pedestrians to pass along said street between said wall and the passing cars, and negligently made and left open a narrow aperture in said wall, with perpendicular sides as high as the wall, and negligently placed across said ditch a foot bridge from the sidewalk to the street, and immediately opposite said aperture; that said ditch and wall extended from Spruce street to the bridge, so that persons passing along the west side of Twelfth street were unable to cross said ditch and wall and go onto said bridge in any other way than to cross said foot bridge and through said aperture, and upon and over said railroad track in front of approaching cars, that Twelfth street sloped in both directions (north and south) to a point immediately and directly opposite to and in front of said aperture, and that said railroad company, with full knowledge of all the facts so stated, negligently, carelessly, and unskillfully ran and operated its cars over and along said street and track in front of said aperture at a rate of speed so great as to endanger the lives and safety of pedestrians who attempted to pass over said foot bridge between said sidewalk and the roadway of Twelfth street; that such condition of affairs constituted a continuing nuisance, and was dangerous to the lives and safety of pedestrians; that on or about the 25th of June, 1890, the son of plaintiff, who was then seven years of age, while attempting to cross said foot bridge, and go from said sidewalk to and upon said Twelfth street, "was, through and by the negligence, carelessness, and unskillfulness of the defendant Union Depot Railroad Company, its agents and servants, run upon and knocked down by the horses drawing one of the cars owned and operated by the defendant Union Depot Railroad Company, and was then and there run over by said car, and thereby suffered injuries which caused his death on the next day thereafter, to the damage of the plaintiffs in the sum of five thousand dollars." The city and construction company filed a general denial for answer. The street-car company pleaded a general denial and contributory negligence, which last was, by the court, stricken out.

The evidence developed the following facts: On the 4th of April, 1890, the city of St. Louis passed an ordinance, being 15,640, "to establish Thirteenth street sewer from Poplar street to Market street, to provide for the cost thereof," etc. In pursuance of this ordinance, on May 13, 1890, the city of St. Louis made a contract with the Heman Construction Company, for constructing Thirteenth street sewer on Twelfth street from Poplar street to Clark avenue in the city of St. Louis, Mo. By the terms of this contract it was the duty of the Heman Construction Company to so place excavated material as not to interfere with travel on the street, or to incommode occupants of adjoining property; and to replace paving in the same manner as when originally constructed. Twelfth street, from Poplar street to Clark avenue, is a public highway, and is paved with granite blocks. Twelfth street runs north and south, Poplar street and Clark avenue run east and west. The northern approach of the bridge on Twelfth street which crosses the railroad tracks commences at a point about 50 feet north of Poplar street. The Union Depot Railroad Company had two tracks on Twelfth street from Clark avenue to northern approach of Twelfth street bridge and on the bridge on June 25, 1890; and for a long time prior thereto, was running horse cars on those tracks. The cars going south run on western track and cars going north on eastern track. Some time prior to June 25, 1890, defendant the Heman Construction Company began the construction of a sewer under its said contract with the city of St. Louis, and commenced on Twelfth and Poplar streets, going north on Twelfth street as the work progressed; and on June 25, 1890, the trench for the sewer was dug about 200 feet or more north of the north point of the Twelfth street bridge. The granite paving blocks on Twelfth street along the trench were taken up by the Heman Construction Company, and piled along the east line of the trench about 5 feet high, 3 feet wide, and west of the western rail of street car track. North of the bridge approach the granite was piled northwardly 9 feet 7 inches in length and 2 feet 2 inches wide to an opening, leaving a space eastwardly between the granite wall and the west rail of track of about from 4 to 5 feet for pedestrians crossing the bridge to walk upon. There was no obstruction between the western car rail and this pile of granite blocks. On the bridge the distance between the west rail of track and pile of granite blocks was 4 feet, and at the opening it was about 6 feet. At a point 9 feet 7 inches from north approach of bridge, defendant Heman Construction Company left an opening in the pile of granite 7 feet wide, and placed three boards across the ditch, so that persons coming north on the west side of bridge could cross trench to the pavement on Twelfth street, and persons going south on the pavement on west side of Twelfth street could cross the trench to get to the bridge. North of this opening the granite blocks were piled along the trench 5 feet high, 3 feet wide, and about 2 feet from west rail of track. There was no street crossing at this point, nor was the opening in the granite intended to facilitate or invite crossing of the street at this point, but its purpose seems to have been simply to afford a continuous way north and south to and from the Twelfth street bridge on the west side of said street. The street cars were drawn by two horses, but at a point near Spruce street a third horse was hitched to all cars going south, on the west side of the team, in such a position as to occupy, in passing, more or less of the space between the west rail and the wall. It was hitched to the car to help the team draw it, after passing the aperture, up the grade going south, and leading over the Twelfth street bridge. This condition of things had been nearly the same, with the knowledge of the railroad company, since a time late in May or early in June. On June 25th, Eddie, the seven year old son of these appellants, in going east across the foot bridge into the street, was run over by a car drawn by three horses, moving south. The evidence as to the speed of the car was conflicting. One witness for plaintiffs testified the car was going 12 miles an hour. On the part of defendants, two witnesses put it at 4 miles an hour, one at 4 to 5 miles, and one says the horses were moving in a slow trot. No witness for plaintiffs saw the accident. Sahms, who was on the car, says he sat with his face to the rear, or north, and did not see the boy until after the car ran over him. On the part of defendants, William Buckrader, a...