Rafferty v. Missouri Pac. Ry. Co.

Decision Date14 February 1887
Citation3 S.W. 393,91 Mo. 33
PartiesRafferty et al. v. The Missouri Pacific Railway Company, Appellant
CourtMissouri Supreme Court

Appeal from St. Louis City Circuit Court. -- Hon. Geo. W. Lubke Judge.

Reversed.

Bennett Pike for appellant.

(1) The demurrer to the plaintiff's evidence should have been sustained. Grows v. Railroad, 67 Me. 100; Brooks v. Railroad, 1 Abb. App. 211 (25 Barb. 600); McMahan v. Railroad, 39 Md. 438; Lewis v. Railroad, 38 Md. 588; Railroad v. Moore, 24 N. J. Law, 824; Wilds v. Railroad, 29 N.Y. 315; Gahagan v Railroad, 1 Allen, 187; Powell v. Railroad, 76 Mo. 82. (2) The demurrer to the whole evidence should have been sustained. Cases cited supra. (3) The court erred in giving the instructions asked by plaintiffs. Wyatt v Railroad, 62 Mo. 408; Powell v. Railroad, 76 Mo. 80; Lenix v. Railroad, 76 Mo. 86; Zimmerman v. Railroad, 71 Mo. 484; Isabell v. Railroad, 60 Mo. 475; Harlan v. Railroad, 64 Mo. 480; S. C., 65 Mo. 22; Nelson v. Railroad, 68 Mo. 593; Cagney v. Railroad, 69 Mo. 416. (4) The court committed error in refusing instructions asked by defendant. See authorities cited under third point.

Kerr & Kerr for respondents.

(1) Demurrer to the evidence was properly overruled. Karle v. Railroad, 55 Mo. 476; Frick v. Railroad, 75 Mo. 595; Ibid. 542; Stevens v. City of Macon, 83 Mo. 345; Donahoe v. Railroad, 83 Mo. 543, and cases therein cited on pages 554, 555. (2) The instructions given and considered altogether are without error, and fairly put the whole case before the jury. Karle v. Railroad, 55 Mo. 476; McDermott v. Railroad, 87 Mo. 285, and authorities therein cited.

Black J. Brace, J., absent.

OPINION

Black, J.

The plaintiffs, who are husband and wife, brought this suit to recover statutory damages for the loss of their child, a boy eleven years old, who was run over and killed, by the defendant's cars, in the city of St. Louis. At the close of the evidence, the defendant prayed for an instruction in the nature of a demurrer to the evidence, which was refused, and this ruling of the court necessitates an examination of the pleadings and the evidence. The negligence consists in the violation of an ordinance, which is pleaded, was read in evidence, and is as follows:

"Section 26. It shall not be lawful, within the limits of the city of St. Louis, for any car, cars, or locomotive, propelled by steam power, to obstruct any street crossing by standing thereon longer than five minutes, and when moving, the bell of the engine shall be constantly sounded within said limits, and if any car, cars, or locomotives, propelled by steam power, be backing within said limits, a man shall be stationed on the top of the car at the end of the train furthest from the engine to give danger signals, and no freight train shall, at any time, be moved within said limits, without it be well manned with experienced brakemen, at their posts, who shall be so stationed as to see the danger signals and hear the signals from the engine."

The petition states that the defendant's agents backed a freight train down to and against a box car, upon which the boy was standing, causing him to fall off and the trucks of the car to run over and crush his body; that the moving freight train was propelled by a steam engine, the bell of which was not constantly sounded while the engine was moving the train; that the agents of defendant backed the train on Levee street, without having a man stationed on the top of the train furthest from the engine, to give danger signals; that the train was not well manned, with experienced brakemen, at their posts so as to see and hear the signals.

The evidence shows that, from Chouteau avenue, on the north, to Convent street, on the south, the defendant has six or seven parallel tracks, next to the river bank, and on and along the levee. The space thus occupied is used for no other purpose, and is called the Chouteau avenue yard. These tracks are connected with the ferry, and are used for the reception and distribution of cars and freight from the boats. The track nearest the river is designated number one, and is used for storing "empties." Plaintiffs' evidence tends to show that the boy was standing on the north end of a box car standing in this yard, but the witnesses differ as to whether the car was on the first, second, or third track; they agree that there were other cars standing to the north, on the same track, and detached from the one on which the boy was standing. These cars to the north, they say, ran against the one on which the boy was standing, and the witnesses saw him fall off. They say they heard no bell, and saw no man on the moving cars, but they do not give any account as to how the cars were moved, nor does it appear, from their evidence, that the moving cars were a part of any train.

The evidence for the defendant shows that the car on which the boy was standing stood on the first track. To the north, and disconnected with it, and on the same track, were several other cars. Two empty box cars, belonging to a train of four or five cars, were detached at Chouteau avenue by the engine "giving the slack." Kelley, a brakeman, got upon the two detached cars and rode them down the incline, at the same time applying the brake to...

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