Bell v. Hannibal & St. Joseph R.R. Co.

• Decision Date: 30 April 1880
• Parties: BELL v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

72 Mo. 50

BELL

v.THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

April Term, 1880.

Appeal from Linn Circuit Court.--HON. G. D. BURGESS, Judge.

REVERSED.

Geo. W. Easley for appellant.

Louis Houck for respondent.

NAPTON, J.

This was a suit to recover damages under the 2nd section of the damage act, based on the allegation that the plaintiff's son, Athen Bell, was killed by the negligence of the defendant's agents, in running a train through the town of Meadville, at an improper rate of speed and without giving timely notice of its approach.

It seems that Athen Bell, who was past fifteen years old, and well grown for his age, had, at the request of his father, who had recently moved from Saline county into that neighborhood, gone to Meadville to procure some corn, and that about two o'clock in the afternoon, when the fast passenger train of defendant from the east was due, he stood upon the main track between the rails looking at an engine attached to a freight train which was on the switch south of the main road, waiting for the fast train to pass, which did not stop at Meadville. His attention seems to have been absorbed by this locomotive. At all events he seems not to have heard the station signals which were given at the usual place east of town, and about a halfmile from the depot; nor did he pay any attention to the alarm whistle which the engineer had sounded, as soon as he saw the boy on the track. The boy was west of the street or road which crossed the railroad, from forty to sixty feet. How far the boy was from the train, when the engineer discovered him on the the track, is not certainly fixed by the testimony, not less however than 200 yards. The train could have been seen for six or seven hundred feet. The alarm whistle was kept continuously blowing and also the bell was rung, according to some witnesses. When the engineer discovered that the boy did not move, he put on the brakes, but it seems that it was too late to save the life of young Bell.

The following were the instructions in the case given at the instance of the plaintiffs:

1. It stands admitted by the pleadings in this cause that on the 11th day of May, 1875, on the track or line of the Hannibal & St. Joseph Railroad, in the town of Meadville, in Linn county, Athen Bell, the son of the plaintiffs, was struck and killed by a locomotive engine attached to a train of cars, run and operated on defendant's said railroad by its agents, servants and employees.

2. If the jury believe from the evidence that the plaintiffs, John A. Bell and Eliza J. Bell, are husband and wife, and the parents of Athen Bell, who was killed on defendant's railroad at the time and place stated in the petition, and that said Athen Bell was, when so killed, a minor and unmarried, then the jury should find their verdict for the plaintiffs; provided they further believe from the evidence that said Athen Bell died from an injury resulting from or occasioned by the negligence or unskillfulness of any agent or employee of the defendant whilst running, conducting or managing the locomotive engine and train which ran upon, struck and killed said Athen Bell.

3. It is the duty of those in charge of a locomotive and train of cars in approaching the crossings of the public streets to commence ringing the bell or sounding the steam whistle at the distance of eighty rods therefrom, and to keep ringing the bell continuously or sounding the steam whistle at intervals until the train shall have passed over such public street, and if the jury believe from the evidence that, in this case, as the train approached and passed over a public street in the town of Meadville, the person in charge thereof did not ring the bell or blow the whistle as above required, and that the boy, Athen Bell, was struck by the locomotive and killed by reason of said omission and without fault on his part, then the jury will find their verdict for the plaintiffs.

4. Railroad companies and those operating and running their trains should exercise greater care and caution at points where their road passes through populous towns and villages than would be necessary in districts not so thickly populated.

5. Railroad companies, owing to the dangerous character of the vehicles and machinery which they operate, are held to the greatest care, caution and skill in the management of their business.

6. Notwithstanding the jury may believe from the evidence that the said Athen Bell was improperly on the track of defendant's railroad, and that it was negligence on his part to have been there at that time; yet if the jury further find from the evidence that the servants and employees in charge of the engine and train mentioned in the petition were negligent in running and managing the same, and that such negligence and improper management of said engine and train were the direct and immediate cause of the death of said Athen Bell. then the jury are bound to find for the plaintiffs.

7. Although the jury may believe from the evidence that the boy was improperly on the track, and that he may have been negligent in standing thereon; yet if the jury believe that those in charge of the train could, by the proper observance of their duties and by ordinary care, prudence and caution in their business, have slacked up the speed of the train, by any means in their power, so as to prevent his killing, and that they failed so to do, then the persons in charge of the train were guilty of negligence for which the defendant is responsible.

8. While railroad companies are not limited by law as to rate of speed, yet whether the rate of speed in any particular case is excessive or dangerous, is a question for the jury, to be determined by them in view of the time, place and circumstances, and if in this case the jury believe that the rate of speed at which the train was approaching the town of Meadville, and at the time the boy was struck, was excessive or dangerous at that time and place, then those in charge of it were guilty of negligence in so running it.

9. In making up their minds whether the rate of speed at which the train was running at the time the boy was struck and killed was dangerous, the jury may take into consideration the time, place and all the surrounding facts and circumstances detailed in evidence.

The defendant then prayed the court to give the following instructions to the jury:

1. The burden of proof is on the plaintiffs to show every material fact going to make up the issues, and unless they have proven by a preponderance of evidence to the satisfaction of the jury that young Bell was killed by the carelessness and negligence of defendant, and without his contributing proximately thereto, they must find for defendant.

2. If the jury believe that deceased was killed by reason of his own negligence and not by the negligence of defendant, then they must find for the defendant, although they may believe that at the time the train struck him it was running at the rate of twenty-five miles per hour or faster.

3. Although the jury may believe that in some regards the defendant was negligent, yet if they further believe from the evidence that deceased, by the exercise of ordinary prudence and caution, could have avoided the accident, they must find for the defendant.

4. If the jury believe from the evidence that there is a curve in defendant's road just east of the depot at Meadville which prevented the engineer of the engine drawing the train in question from seeing Athen Bell upon the main track of said road between the crossing and said depot until such engineer was within 200 or 300 yards of said depot; that, owing to the grade on said road between said points, said engineer could not stop said engine and train after seeing said Athen Bell, so as to prevent striking and killing him; that said engineer sounded the alarm whistle on said engine as soon as he discovered said Bell to be upon said track, and kept sounding it so long as there was any chance of warning said Bell of the approach of said engine and train, they will find for the defendant, notwithstanding they may further believe from the evidence that said train was running at a speed of twenty-five miles an hour or faster.

5. If the jury believe from the evidence that the engineer of the engine drawing the train in question could not see Athen Bell, the deceased, until within from 200 to 300 yards of him, and that owing to the grade he could not stop his train after so seeing said Bell, so as to prevent striking and killing him, they will find for the defendant, provided they shall further believe from the evidence that said engineer sounded the alarm whistle as soon as he discovered said Bell to be upon the main track of defendant's road and kept sounding it so long as there was any chance of warning said Bell of the approach of said engine and train.

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