Barney v. Hannibal & St. J. R. Co.

CourtUnited States State Supreme Court of Missouri
Citation126 Mo. 372,28 S.W. 1069
Decision Date18 December 1894

Appeal from circuit court, Buchanan county; H. M. Ramey, Judge.

Action by Frankie Barney against Hannibal & St. Joseph Railroad Company for damages for personal injuries. Judgment was rendered in favor of plaintiff, and from an order granting a new trial he appeals. Affirmed.

Action for damages in the sum of $12,000 for injury to plaintiff's foot, it having been run over and crushed by the defendant company's cars in its railway yard in the city of St. Joseph, requiring amputation of the larger portion of the foot. The subjoined plat indicates the locus in quo and its surroundings. The accident occurred on the 28th of August, 1891, at which time plaintiff lacked of being six years of age the difference in time between that date and the next December. As will appear by inspection of the plat, the defendant owned a tract of ground


between Sixth and Eighth streets, lying south of Olive street, in said city, which is used as its railway yard. This yard was half a mile long, and in it was situated its freight house, warehouse, team-delivery tracks, the side tracks used for the purpose of storing cars and in making up trains, and in which all its switch work was done. This yard was separated from Eighth street by a strip of ground owned by the Rock Island road upon which that company had two tracks. At the point where Mitchell avenue would cross the defendant's yard, had it been opened through the same, was a large warehouse, and just north of the warehouse there was a vacant, unoccupied plat of ground. The children in the neighborhood resorted to this vacant, unoccupied space, and played marbles, hopscotch, and other games there, and they frequently would get on the cars as the trains moved through the yards, or as the cars were being switched backwards and forwards in the making up of trains, — a process that, it seems, was going on during most of each day. Some days they would quit their games to ride on the cars, and some days they would not. Sometimes, as the evidence shows, they rode on the tops of the cars. Sometimes, and most usually, they contented themselves by seizing with their hands the stirrup or lower round of the ladder on the side of the car, and then, placing their feet against the truck of the car, would ride in that way. Plaintiff, whose parents lived in the vicinity of the yard, at 812 Penn street, was an habitue of these yards; had been for some six months prior to the date mentioned; frequented the playground north of the warehouse, red barn, or red house, as it was variously termed; and frequently had indulged in the perilous sport of riding on the cars, as above indicated. Indeed, on the very morning of the mishap, plaintiff had jumped on the cars, and his father, seeing him there, went over and whipped him therefor, and spoke to some of the men there in regard to it. About this plaintiff's father says: "I told two or three of them I wished they would whip the boy when they caught him in the yard; and the party made the remark, `If we did, you would get mad about it,' and I said, `I don't know whether I would or not.'" Instructions were given to defendant's employés to keep the boys out of the yard, and such employés obeyed these instructions, and drove the boys out, and for their pains in this regard, when the boys reached the street, they would tell the employés to come no further, and would greet them with showers of stones. There was evidence, however, that defendant's employés did not obey their instructions at all times, but frequently, and without rebuke, would let the boys ride on the cars. But the uncontradicted testimony shows that it was simply impossible for the employés to perform their work and keep the boys out of the yards. East of the defendant's freight house, and between it and the Rock Island tracks, there were a dozen or more tracks running north and south, parallel to each other. Teams entered the yard from Olive street near where Seventh street would enter the yard if it were open through the yards, and teams also came into the yards where the alley between Seventh and Eighth streets abutted against the yard on the north line, and a regular crossing had been made for teams over the Rock Island track on the east side of the yard near the old warehouse. On the date mentioned a regular freight train coming into St. Joseph from the east, consisting of 20 cars, pulled into this yard on one of these parallel tracks, and, passing west of the old warehouse, ran on north until the engine got within 50 feet of Olive street, where it stopped. The train was fully manned by its regular crew. In passing by the warehouse the train seemed to have attracted the attention of the boys who were playing north of the old warehouse, and plaintiff and two or three others ran over to the side of the train, and, catching hold of the stirrup or lower round of the ladder on the side of the cars, and placing their feet against the trucks of the cars, rode some distance. Plaintiff says he hopped on four or five cars back from the engine; that he caught hold and rode a piece, and then dropped off onto the ground, and again caught hold to ride as another car passed him. While holding on by his hands to the ladder with his feet on the journal that held the axle, his foot slipped off, went down onto the rails between the two wheels, and one wheel ran over the front portion of his foot, necessitating the amputation thereof. The evidence shows that the tracks east and west of the track on which the train pulled in were covered with cars; injury occurred at a point opposite the middle of the freight house; that the engineer, fireman, and brakeman of the train were at their places and on the lookout, and that they saw nothing of the boys. Indeed, the evidence shows that not one of the train crew knew of the accident to plaintiff for some hours after it occurred. As soon as the crew had taken the train up to the point near Olive street, and opposite the freight house, the train was stopped, and the engine was cut off and taken to the roundhouse, and, the work of the crew being done, the crew went home. The plaintiff's father was a conductor on the Grand Island Railroad, and knew the danger his son would incur in frequenting a railroad yard. Both he and his wife had punished the plaintiff a great many times before the day of the accident for being in the yard. At the close of the case certain instructions were given for plaintiff, certain ones given and others refused defendant, and then the jury brought in a verdict for plaintiff in the sum of $5,000. Whereupon the trial court, satisfied that it had, during the trial, committed "error of law," granted a new trial on being moved thereto by defendant. From this order awarding a new trial plaintiff appealed to this court.

Jas. W. Boyd, for appellant. Spencer & Mosman, for respondent.

SHERWOOD, J. (after stating the facts).

Owing to the view taken of the facts of this case, it will be unnecessary to quote or comment on the instructions given or refused save one in the nature of a demurrer to the evidence, which, offered by defendant, the trial court refused to give. In determining the propriety of this refusal, several points of law will be found to be involved.

1. In the first place, the rule applicable in what is known as the "Turntable Cases" has no application to cases of this sort. Railroad cars and similar machinery are not "dangerous machines," within the meaning of that rule, as is abundantly and exhaustively shown, both directly and indirectly, in the following cases: Bishop v. Railroad Co., 14 R. I. 314; Catlett v. Railway Co. (Ark.) 21 S. W. 1062; Railroad Co. v. McLaughlin, 47 Ill. 265; Gavin v. City of Chicago, 97 Ill. 66. The case last cited was one where the injury occurred to a little boy only four years old, on a swing bridge, and it was ruled that when such a bridge in a city is reasonably safe for persons using ordinary care, and a child, without the fault of its parents, with other children, playing upon and about such bridge, is injured while the bridge is being handled with the requisite and usual care and skill, no recovery can be had against the city, but the injury must be attributed to accident. The law does not make it the duty of municipal authorities to so construct such bridges as to make them safe for children to play upon and around them; hence they are not required to place guards or mechanical contrivances to keep children off the same; Scott, J., remarking: "No doubt it would be possible to place a sufficient guard on duty at every bridge that would prevent accidents to careless persons, and to children that might come there to play, or some mechanical contrivance might possibly be constructed that would answer the same purpose; but the law has not made it the duty of municipal corporations to observe such extraordinary care. The bridge, in the condition it was then in, was reasonably safe for all...

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