Barney v. The Hannibal & St. Joseph Railroad Company

• Decision Date: 09 January 1895
• Parties: Barney, by Next Friend, Appellant, v. The Hannibal & St. Joseph Railroad Company
• Court: Missouri Supreme Court

28 S.W. 1069

126 Mo. 372

Barney, by Next Friend, Appellant, v. The Hannibal & St. Joseph Railroad Company

Supreme Court of Missouri, Second Division

January 9, 1895

Appeal from Buchanan Circuit Court. -- Hon. H. M. Ramey, Judge.

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 twenty-eighth 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.

[SEE MAP IN ORIGINAL]

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 sidetracks 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 would frequently get on the cars as the trains moved through the yards, or as the cars were being switched backward and forward 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 employees to keep the boys out of the yard, and such employees 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 employees to come no further, and would greet them with showers of stones. There was evidence, however, that defendant's employees 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 employees 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 twenty 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 fifty 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.

Affirmed.

""James W. Boyd for appellant.

(1) The motion for new trial should not have been sustained. No error of law was committed by the trial court. (2) The instruction given on the part of the appellant is correct. A proprietor can not place on his premises, exposed and unguarded, on or near public streets, adjoining residences and in the heart of a populous city, any dangerous instrument or agency, calculated to attract children and neglect to take necessary steps to protect them from injury and escape liability for injury occurring by reason of such negligence. ""Fink v. Furnace Co., 10 Mo.App. 61; ""Brown v. Railroad, 50 Mo. 461; ""Crafton v. Railroad, 55 Mo. 580; ""Birge v. Gardiner, 19 Conn. 507; ""Hydraulic Co. v. Orr, 83 Pa. St. 332; ""Nagel v. Railroad, 85 Mo. 653; ""Schmidt v. Distilling Co., 90 Mo. 284; ""Railroad v. Fitzsimmons, 22 Kan. 686; Wharton on Neg., sec. 112; 1 Thompson on Neg., p. 304; ""Rushenberg v. Railroad, 109 Mo. 112; ""Marcott v. Railroad, 49 Mich. 99; ""Railroad v. Measles, 17 S.W. 124; ""Barrett v. Railroad, 27 P. 666; ""O'Malley v. Railroad, 43 Minn. 289. There could have been no contributory negligence. (3) If a reasonably prudent person, in the exercise of reasonable care, would have erected a fence or barrier on the sides of its yard on the side where the children came into it, or employed a watchman to keep them out, then it was respondent's duty to have done so. It was bound by common law principles to have done so, in the absence of any statute to that effect. ""Marcott v. Railroad, 40 Mich. 99; ""Dean v. Sullivan, 22 N.H. 316; ""Railroad v. Chenewirth, 52 Pa. St. 382; ""Donegan v. Erhardt, 119 N.Y. 486; Wharton on Neg., sec. 112. (4) Under the circumstances of this case, persons operating the train could not act upon the presumption that there was no danger without being responsible for the consequences. ""Frick v. Railroad, 75 Mo. 595; ""Brown v. Railroad, 50 Mo. 461; ""Hicks v. Railroad, 64 Mo. 430; ""Williams v. Railroad, 96 Mo. 275. (5) The verdict is in accordance with the instructions and the law and facts in the case and should not have been set aside. ""Noble v. Blount, 77 Mo. 235; ""Boyce v. Smith, 16 Mo. 317; ""State ex rel. v. Adams, 76 Mo. 605.

""Spencer & Mosman for respondent.

(1) The court did not err in granting the defendant a new trial of this cause, for the reason that, under the evidence, the plaintiff was not entitled to recover. (2) The plaintiff was injured in the private grounds of the defendant, which constituted its railway yard. In order to maintain an action for a negligent injury "it must appear that there was a legal duty due from the person inflicting the injury to the person on whom it was inflicted and that such duty was violated by a want of ordinary care on the part of the defendant." ""Kahl v. Love, 37 N. J. L. 8 and 9, ""Hallihan v. Railroad, 71 Mo. 113; Cooley on Torts, 659 and 660. (3) The plaintiff and defendant did not occupy toward each other either, ""first,...