Spillane v. Missouri Pacific Railway Company

Decision Date07 October 1896
Citation37 S.W. 198,135 Mo. 414
PartiesSpillane, Plaintiff in Error, v. Missouri Pacific Railway Company
CourtMissouri Supreme Court

Error to Jackson Circuit Court. -- Hon. J. H. Slover, Judge.

Affirmed.

R. H Hamilton, R. E. Ball, and Fyke, Yates & Fyke for plaintiff in error.

(1) The ordinance excluded by the court provides, "One or more watchmen shall be employed * * * to be stationed at each of the crossings hereinafter named, whose duty it shall be by day and night, to notify all persons about to cross the railroad track at any such crossing, of the approach of any locomotive, tender or car." The failure of defendant to have such watchman at the crossing of Grand avenue and Front street, is one of the grounds of negligence alleged in the petition. The mere fact that the boy was not struck immediately upon the crossing is immaterial, because, if the watchman had been at his post of duty, he might have seen the boy and warned him of the approaching train. It can not be contended that the watchman was called upon to watch simply between the four corners of the crossing, especially in view of the circumstances of this case, which show that people frequently passed diagonally across Front street, with wagons and teams and otherwise. Such persons were entitled to the protection of these ordinances, as fully as persons who desired to cross straight across the street. (2) Defendant's third instruction is erroneous. Spillane v. Railroad, 111 Mo. 564. (3) Defendant's fifth instruction is erroneous. Kelly v. Union Railway and Transit Co., 95 Mo. 279-285; Dunkman v Railroad, 95 Mo. 232. (4) Defendant's seventh instruction is erroneous. It selects out a part of the facts and bases the declaration of law upon them, ignoring the remainder. This is improper. Barr v. Kansas City, 105 Mo. 557-559. (5) For the reasons above stated the court erred in overruling plaintiff's motion for a new trial.

Robinson & Carkener for respondent.

(1) The city ordinance requiring a watchman to be kept at Grand avenue crossing was properly excluded. Bell v Railroad, 72 Mo. 50; Hardy v. Railroad, 42 N.Y. 468; Railroad v. Feathers, 10 Lea (Tenn.), 103. (2) The trial court did not err in giving defendant's third instruction. Ridenhour v. Railroad, 102 Mo. 270; Tucker v. Railroad, 124 N.Y. 308; Wendell v. Railroad, 91 N.Y. 420; Reynolds v. Railroad, 58 N.Y. 248. (3) Nor did the trial court err in giving instruction number 5 asked by defendants. (4) If the accident was caused by the plaintiff standing by the side of the track with the ice tied to his arm so situated as to be caught by the passing engine, then the speed of the train whether lawful or unlawful could not be held to have been the proximate cause of the accident. Railroad v. Staley (Ohio), 19 Am. and Eng. R. R. Cases, 381; McClary v. Railroad, 3 Neb. 53; Lowery v. Tel. Co., 60 N.Y. 198; Railroad v. Reeves, 10 Wall. 176; Hoodley v. Trans. Co., 115 Mass. 305.

Gantt, P. J. Sherwood and Burgess, JJ., concur.

OPINION

Gantt, P. J.

This is an action for damages resulting from personal injuries sustained by plaintiff on the thirteenth of October, 1888. This is the second appeal in the cause. The first is reported in 111 Mo. 555. On the last trial the jury returned a verdict for defendant from which plaintiff brings error.

The accident occurred at a point on defendant's railway in Kansas City two hundred and sixty-five feet east of the east line of Grand avenue where said avenue intersects defendant's tracks on Front street. At this point and for several hundred feet both east and west the defendant's railway is located on and along Front street in said city. Grand avenue runs north and south and the railway east and west. Across Grand avenue and at the point where the accident occurred, the defendants' railway consists of four parallel tracks.

Beginning at the south the first track is known as the outgoing or east bound main track, the second, as the incoming or west bound track, the other two are team or storage tracks used in loading or unloading freight. East of Grand avenue the tracks are straight but three hundred or four hundred feet west of Grand avenue there is a curve so that a person coming from the west along the railroad track could not see beyond Grand avenue until after having passed this curve, nor could a person on the track east of Grand avenue see a train coming from the west until after it rounded this curve.

Coming from the west there is a considerable up grade until near Grand avenue and from that point east the track is practically level. The defendant's freight depot is located on the north side of the tracks and on the west side of Grand avenue and about fifty feet from the west line of said street and its passenger depot is located on the south side of the tracks and east side of Grand avenue. The platform of this depot extends from the east line of Grand avenue eastwardly from one hundred to two hundred feet, as variously estimated by the witnesses.

Wood Brothers' ice house is located on the north side of the tracks and something over three hundred feet east of Grand avenue. The two main tracks are located on Front street while the two team tracks on the north are located on private property just north of the north line of said street. The tracks are only a few feet apart and the spaces between the rails are planked over for the accommodation of passengers getting on and off trains and of persons desiring to load and unload freight.

Teamsters and other persons having occasion to go to Wood Brothers' ice house were accustomed to travel north on Grand avenue until reaching the railway tracks and thence diagonally across the tracks to a wagon road on the north side of the tracks leading to said ice house. This road leaves the railroad tracks at a point one hundred and fifty feet east of the east line of Grand avenue and one hundred and six feet west of the point where the plaintiff received his injuries.

The plat accompanying this opinion accurately describes the situation of the various points referred to in the testimony of the witnesses:

[SEE ILLUSTRATION IN ORIGINAL]

The plaintiff's father resided with his family, on Grand avenue, about a block and a half south of defendant's tracks. He had lived there about two years prior to the date of the accident, and had lived in the neighborhood of the place where the accident occurred for several years prior to that time. During all this time the plaintiff had been accustomed to playing about the railroad tracks and was perfectly familiar with everything in the locality and of the movement of the trains. According to plaintiff's own testimony, as well as that of his father and mother, and several neighbors who were intimately acquainted with him, he was a very bright, intelligent boy, and perfectly aware of the danger of being on or about the railroad tracks while trains were passing. At the time of the accident the plaintiff was something over nine years old. A month prior to the accident his mother had given to Miss Halbert, a teacher in the school to which plaintiff was sent, a statement that he was then nine years and three months old. During the summer vacation preceding the accident he had been engaged in selling papers around the city, and had continued this in the evenings after the session of school began. His mother had been accustomed to send him to Wood Brothers for ice. In the afternoon of the day of the accident he was sent by his mother to Wood Brothers for a piece of ice. He took with him a twine string, and tied one end of it to the ice, and the other end to his wrist, for the purpose of dragging the ice home, instead of carrying it. He was accompanied by his brother, a boy about seven years old. So far as the evidence shows, no person saw him from the time he left the ice house until after the accident had occurred.

A switch engine, hauling about forty cars, passed eastwardly on the south track, and just after it passed the plaintiff was discovered lying on the south side of this track at a point two hundred and sixty-six feet east of the east line of Grand avenue. He had received a very severe scalp wound and the ends of two of the fingers of the left hand were mashed. None of the trainmen saw the plaintiff at the time of the accident. The engineer and fireman were at their proper places in the cab and looking forward, but neither they nor any of the other trainmen knew of the accident until several hours after it had occurred. They were taking the cars to different places in the bottoms east of Kansas City and did not return until late in the afternoon. When they returned they were informed by Mr. Hennesy, the defendant's freight agent at Grand avenue, of the accident.

The petition charged negligence, first, in the failure to have a watchman present at the Grand avenue crossing of defendant's tracks, as required by sections 816 and 819 of chapter 42 of the ordinances of said city and, second, in running said train in excess of six miles an hour in violation of the ordinances of said city.

Section 816 provides that "one or more watchmen shall be employed at the expense of the person or corporation using railroad tracks or operating railroads within this city, to be stationed at each of the crossings hereinafter named, whose duty it shall be by day and night to notify all persons about to cross the railroad track at any such crossing of the approach of any locomotive, tender, or car.

Section 819 designates as one of such crossings the crossing by the railroad tracks over Grand avenue at Front street.

Section 820 imposed a penalty of not less than $ 25 nor more than $ 500 upon any conductor, engineer, fireman, brakeman, or other person who should move, or cause, or...

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