Barkley v. Missouri Pac. Ry. Co.

• Decision Date: 26 November 1888
• Citation: 96 Mo. 367,9 S.W. 793
• Parties: BARKLEY v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

9 S.W. 793

96 Mo. 367

BARKLEY v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri.

November 26, 1888.

1. RAILROAD COMPANIES — ACCIDENT AT CROSSING — REMOTE AND PROXIMATE CAUSE.

In an action against a railroad company for personal injuries, it appeared that defendant's freight train was drawn up on a side track in front of the depot, awaiting the arrival of a passenger train. There was a public crossing to the east of the depot, and a depot crossing west of it, both of which the freight train obstructed. Plaintiff, a child six years of age, on his way to the depot started to cross in front of the train near the depot crossing; but, the train beginning to move, he turned and walked toward the caboose, and, while so walking, from some cause stumbled, and fell under the moving cars. Held, that the blocking of the depot crossing, not being the immediate cause of the injury, the railroad company was not liable, even if it had been its duty to have it open at the time.

2. SAME — NEGLIGENCE — FAILURE TO SIGNAL.

Under the circumstances defendant was not negligent in failing to give a starting signal, or a signal that the train was in motion.

3. SAME.

Plaintiff being between the moving train and some box cars on another track, with nearly six feet between the tracks and three feet space between the cars, was not in such a position of danger as to make defendant negligent in starting and moving its train, though plaintiff was in sight of defendant's employes at the time.

Appeal from circuit court, Jackson county; TURNER A. GILL, Judge.

Action for damage for personal injuries, brought by Albert Barkley, by his next friend, O. C. Barkley, against the Missouri Pacific Railway Company. Defendant appeals from a verdict, and judgment awarding plaintiff $7,000 damages.

Thomas J. Portis and Adams & Bowles, for appellant. Gates & Wallace and A. Comings, for respondent.

BRACE, J.

In this case the plaintiff, who is an infant, (aged about six years at the time of his injury,) obtained a judgment against the defendant for $7,000, from which the defendant appeals. The petition, after averring defendant's corporate existence, alleges, in substance, "that the defendant, while operating its railroad by its servants, drew a train of freight cars on a side track at one of its stations, to-wit, at the town of Greenwood, in Jackson county, so as to wholly obstruct the approach to its said station for half an hour; that while said train was standing on said side track one of defendant's passenger trains arrived at said station; that plaintiff, desiring and intending to reach said depot and the platform thereat, by the usual approach thereto, attempted to cross its said track; that owing to the fact that its said approach to its said station and platform was thus obstructed by defendant's freight train, which defendant had carelessly, negligently, and wrongfully left standing on said side track, plaintiff was unable to reach said depot by the usual approach thereto; that in order to reach, and for the purpose of reaching, the depot, plaintiff was compelled to pass, and attempted to pass, around said freight train; that at the time there were standing on a side track, south-west of said freight train, and but a few feet distance therefrom, a number of defendant's freight cars; that in order to pass around the freight train, it was necessary for plaintiff to pass between said stationary cars and said freight train; that while plaintiff was so between said stationary cars and said freight train defendant's servants and employes carelessly and negligently started to move said freight train from said station, and in so doing carelessly and negligently ran the same over plaintiff, and greatly injured and maimed him, by crushing his right arm under the wheels of said freight train, so that it had to be amputated near his shoulder, and he suffered great pain and anguish, and was rendered a cripple for life, and was damaged in the sum of twenty thousand dollars." Defendant's answer is a general denial, and further pleads that at the time of the happening of the injuries to the plaintiff he was attempting to steal a ride on the freight train aforesaid; that he took hold of and held onto a portion of one of the freight cars until it had acquired a considerable speed, when he attempted to leave the car, and in so doing he fell, and the wheels passed over his arm; that he had, prior to that time, constantly been in the habit of climbing upon and clinging to the cars about the depot, and had been repeatedly told not to do so, and warned of the danger to him; that the father and mother of plaintiff, he being a boy of about six years of age, were guilty of negligence in permitting him to go about the defendant's depot and tracks, where dangerous and ponderous machinery is used, without being in charge of some other person, and in directing and sending him there, and in allowing him to ride upon and cling to the trains as aforesaid. Plaintiff's reply is a general denial: On the trial the defendant objected to the introduction of any evidence on the part of the plaintiff, on the ground that the petition does not state a cause of action. Its objection was overruled. At the close of plaintiff's testimony defendant demurred to it for insufficiency, which was overruled, and at the close of all the evidence asked the court to instruct the jury "that, under the pleadings and all the evidence in the cause, the plaintiff cannot recover, which was refused, and the case submitted to the jury on instructions given, after refusal to give several of those asked by the defendant. The uncontradicted evidence was that passing in front of the depot, at the town of Greenwood, the defendant has three tracks, six feet ten inches apart, (a main track, and two switches, — one for passing trains, the other for station cars,) running parallel with each other, in a general direction from south-east to north-west, or vice versa. The depot is on the north and the town is on the south side of these tracks. The depot fronts towards the town, and has a platform in front of it, extending east of the depot about 200 feet; and east of the east end of the platform distant a few feet is a public crossing, immediately in front of the depot, and about 250 feet west from the public crossing was another crossing, used in going to and from the town to the depot; the ground south of the tracks in front of the depot, and between them and the public road leading from the post office to the public crossing, being vacant. The freight train by which plaintiff was injured was going west, and was drawn in on the "passing" or middle track to permit a passenger train going east to pass it. It remained on the passing track until the passenger train arrived, and cleared the switch, a period of from 20 to 30 minutes. The train contained from 20 to 25 cars, and, while remaining on the passing track, blocked both the public and depot crossing. West of the depot crossing, on the station or "house" track, there were standing two or three box cars along-side a grain-house which stood on the south side of that track. At a point between these cars and the freight train, about 200 feet west of the depot crossing, the injury occurred. The plaintiff's testimony was, in substance, that during the day on which he was hurt he was at school; that about half past 4 in the afternoon, after school was dismissed, he started down to the depot to get a paper; that he did not go to the public crossing, but went to the depot crossing near the grain-house; that he found that a freight train was across the crossing, and he could not get across; that he started to go around the train in front of the engine, the train commenced to move, and he then started back towards...