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

• Citation: 157 Mo. 666,57 S.W. 276
• Parties: GRANEY et ux. v. ST. LOUIS, I. M. & S. RY. CO.
• Decision Date: 04 June 1990
• Court: United States State Supreme Court of Missouri

57 S.W. 276

157 Mo. 666

GRANEY et ux. v. ST. LOUIS, I. M. & S. RY. CO.

Supreme Court of Missouri.

June 4, 1990.

APPEAL AND ERROR — QUESTION REVIEWABLE — RAILROADS — INJURY AT CROSSINGS — EVIDENCE — INSTRUCTIONS — EXPERT TESTIMONY — COMPETENCY — TRIAL.

1. On appeal from an order granting plaintiff's motion for a new trial, the supreme court will not interfere except for errors of law, or where there is no basis in the evidence on which a verdict for plaintiff should be permitted to stand.

2. In an action to recover for injuries to a boy by a train, claimed to have been caused by the unlawful rate of speed at which it was running, it is not error to instruct that the boy had no right to presume that the train was running at less than the rate limited by ordinance, when, by looking, he could see that it was moving faster, and it is shown that the boy was a bright boy, and familiar with the movements and speed of trains at the place where the injury occurred.

3. A professor of physics testified that he had traveled extensively, and during such traveling had observed the effect of a moving train on the air around it; that a train of 20 to 23 freight cars and engine, running at a speed of 20 to 25 miles an hour, would create such a current of air as might be sufficient to throw a boy weighing 65 pounds, standing within two or three feet of the train; and that there would be a further tendency to turn him around as he fell, which would be sufficient to make him roll when he struck the ground. Held, in the absence of testimony that the witness had ever read in any scientific or other work the results of experiments of others as to the effect of passing trains on any live animal capable of offering resistance to the current of air created by a swiftly-moving train, or had himself made such experiments, that his testimony is incompetent.

4. In an action against a railroad to recover for injuries to a boy, where the plaintiff claims that the boy was sucked under the train by the current of air created by its running at a speed prohibited by ordinance, and the defendant claimed and introduced evidence tending to prove that the boy was standing so near to the cars that he was struck by some projection thereof, testimony of an expert as to whether or not it would have been possible for the boy to have fallen in the manner in which witnesses have testified that he did fall, without the train striking him, is incompetent, since such question was for the jury, and not a proper subject for opinion evidence.

5. In an action against a railroad to recover for injuries to a boy, where the plaintiff claims he was sucked under the train by the current of air put in motion by the train while running at a rate of speed prohibited by ordinance, the defendant cannot be held liable where it is not shown that he knew that such excessive speed would have produced such a result, or that a reasonably prudent man would have apprehended it.

6. The allegations of a complaint in an action to recover for injuries to a boy alleged to have been caused by the boy's being "sucked into and under said train by the force and velocity of said train, which speed and velocity formed a vacuum into which he fell, and was sucked under the wheels of the cars," is not supported by testimony that the wind turned him around, and made him fall, and he rolled under the cars.

Brace, J., dissenting.

In banc. Appeal from circuit court, St. Louis county; Rudolph Hirzel, Judge.

Action by Peter Graney and wife against the St. Louis, Iron Mountain & Southern Railway Company to recover for injuries to their son. From an order granting plaintiffs' motion for a new trial after a verdict in favor of defendant, defendant appeals. Reversed.

Martin L. Clardy and Henry G. Herbel, for appellant. Wm. B. Thompson and Ford W. Thompson, for respondents.

SHERWOOD, J.

This case has been here before (140 Mo. 89, 41 S. W. 246), and is known among the members of the bar of this state as the "Suction Case." It is an action for $5,000 damages for the death of James Graney, the minor son of plaintiffs, alleged to have been caused by his being "drawn or sucked into and under defendant's train by the force and velocity of said train, which was moving at a reckless rate of speed," etc. The petition charges that on the 18th day of January, 1891, there were in force three valid ordinances in the city of St. Louis, — one prohibiting any car or cars or locomotive propelled by steam power to be run at a rate of speed exceeding six miles per hour; another requiring such locomotive to ring a bell constantly while running in the city limits; and the third imposing a penalty for violation of either of the other two; and it also alleges the circumstances under which the son of plaintiffs was killed to be as follows: "On the 18th day of January, 1891, while said plaintiffs' minor son, James Graney, was standing in and upon the crossing of said Dorcas street, alongside of the track of the said railway operated by the said defendant, and at a sufficient and proper distance away from the said track, and away from the locomotive and cars operated by the said defendant, and, while exercising due and proper care, and relying upon the duty of the said defendant to operate its locomotive and cars according to said ordinances, at a rate of speed not in excess of the rate provided for in the said ordinances, he was, by reason of the reckless and dangerous speed of the locomotive and train of cars operated by the said defendant, its agents and servants, suddenly, and without any warning given to him by the said defendant by the ringing of the bell of the said locomotive, or by the operation of the said cars in accordance with the ordinances, drawn or sucked into and under said train by the force and velocity of said train, which was moving at a reckless rate of speed, and in violation of the said ordinances of said city, to wit, at a rate of speed of twenty miles per hour, which speed and velocity caused a vacuum to form, into which the said James Graney fell, and was sucked under the wheels of the cars attached to the locomotive and train of the said defendant, and the cars passed over the body of the said James Graney, so that he was injured, wounded, and bruised, and suffered great pain and anguish, and then and there sustained mortal injuries, and, as the result of the said injuries so received by him, on the 19th day of January, 1891, died from the result of said injuries." Answer, a general denial, and a plea of contributory negligence, alleging that the injury to and death of plaintiffs' minor son "were caused by his own negligence and unlawful conduct in loitering about defendant's tracks while the trains of defendant were moving thereon, and placing himself in such close proximity to such moving trains as to be struck thereby, and in meddling and tampering with the cars composing defendant's train while they were in motion, and in attempting to climb upon them, in violation of the statutes of the state of Missouri, viz. section 3927, Rev. St. 1889, and of the ordinances of the city of St. Louis, to wit, Ordinance No. 13,414." On the trial the ordinances were read in evidence.

It is admitted that James Graney was killed on January 18, 1891, by being run over by a train of freight cars operated by defendant, and that he was the minor son of plaintiffs. It is also admitted that on the date mentioned defendant controlled and operated a railroad a portion of which is located in the city of St. Louis. It had two tracks, running north and south, which crossed Dorcas street at right angles. This street runs east and west. On Sunday afternoon, January 18, 1891, James Graney, then 11 years and 9 months old, and four other boys, to wit, Peter Graney, Jr., Philip Breitwieser, John Ehret, and Pat Harvey, went down Dorcas street from the west, intending to cross the railroad track, and go down within a half a block of the Mississippi river, to a trestle used for the track from the Anheuser-Busch Brewery, where hops were deposited after being used. When close to the crossing, a freight train of 23 cars, drawn by an engine, came to the crossing from the south, on the east track, at the rate, it is said, of 20 miles an hour. James Graney stood between the two tracks, two or three feet from the west rail of the east track on which the train was passing. When about one-half or two-thirds of the train had passed, witnesses testify that he whirled around, and fell upon the ground, and that his legs got upon the rails, and the cars passed over them, from the effects of which injury he died the next day. The boy is said to have weighed 63 pounds, but there is not a particle of evidence on this subject, except an estimate of his weight by his mother and by the undertaker. It was also in evidence that the boy lived but a little way from the railroad tracks, and was quite expert in, and in the habit of, hopping on and off the passing trains, and was a bright, active, intelligent boy.

The testimony of the two experts will now, in brief, be stated.

Prof. Francis E. Nipher, a professor of physics in Washington University for over 23 years, after testifying to these facts, was questioned, and gave the following answers: "Q. In that department of science have you been in the habit of observing the movement of bodies through the air? A. Yes, sir. Q. State what has been your experience in observing the motion of railway trains through the air, and what experiments have you made in that direction? A. I have traveled about ten thousand miles, I presume, and during that time have made experiments on the effect of the train on the air around it. Q. Is there any well-known law of science by which it is known that a body, such as a railroad train, affects the air as it passes through it? A. Yes, sir; there is. When the body moves through the air it drags the air along with it, and usually the air moves somewhat less rapidly...