Buckry-Ellis v. Missouri Pac. Ry. Co.

• Decision Date: 30 June 1911
• Citation: 158 Mo. App. 499,138 S.W. 912
• Parties: BUCKRY-ELLIS v. MISSOURI PAC. RY. CO.
• Court: Missouri Court of Appeals

138 S.W. 912

158 Mo. A. 499

BUCKRY-ELLIS v. MISSOURI PAC. RY. CO.

St. Louis Court of Appeals. Missouri.

June 30, 1911.

Rehearing Denied July 15, 1911.

1. RAILROADS (§ 312) — INJURIES TO TRAVELERS — CROSSING ACCIDENT — NEGLIGENCE.

A locomotive operated backwards, drawing a train of 30 cars, was run over a crossing with no lookout on the tender. It struck and injured a child crossing the track, and the operatives did not stop and did not know of the accident until some time thereafter. Held, that defendant was negligent.

2. RAILROADS (§ 350) — CROSSING ACCIDENT — INJURIES TO CHILDREN — CONTRIBUTORY NEGLIGENCE — QUESTION FOR JURY.

Where plaintiff, a girl about seven years of age, was injured while passing over defendant's track at a crossing, whether she was negligent was for the jury.

3. RAILROADS (§ 350) — CROSSING ACCIDENT — SIGNALS — FAILURE TO RING BELL — NEGATIVE EVIDENCE.

Evidence of witnesses who could have heard the bell of an engine passing over a crossing if it had been rung that they did not hear it was sufficient to raise an issue for the jury, though other witnesses testified for defendant that the bell was sounded.

4. DAMAGES (§ 208) — INJURIES TO CHILDREN — EARNING CAPACITY.

In an action for injuries to a child of tender years, loss on account of impairment of future earning capacity may be properly left to the jury without any proof thereof.

5. TRIAL (§ 207) — INSTRUCTIONS — PURPOSE OF EVIDENCE.

Where defendant in cross-examination of certain witnesses introduced contradictory written statements made by them at the instance of defendant's claim agent shortly after the accident the court properly charged that they were not evidence of any issue in the case, except the credibility of the witnesses, and should be considered for no other purpose.

6. TRIAL (§ 251) — INSTRUCTIONS — CONFORMITY TO ISSUES.

Where, in an action for injuries at a railroad crossing, plaintiff did not seek to recover solely on the ground that the engine was operated with the tender ahead, but relied on that as but one of a combination of circumstances as constituting negligence, the court properly refused to charge that it was not an act of negligence to move the engine with the tender in front, and that the jury could not find for plaintiff on that account.

7. DAMAGES (§ 132) — EXCESSIVENESS — PERSONAL INJURIES — CHILDREN — LOSS OF FOOT.

Where plaintiff, a girl about seven years old, was run over at a railroad crossing, and lost her left foot and the lower part of her left leg, which was amputated between the ankle and knee, a recovery of $10,000 which the court reduced to $7,000 was not excessive.

Appeal from St. Louis Circuit Court; James E. Withrow, Judge.

Action by Amelia Buckry-Ellis by her next friend, etc., against the Missouri Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

R. T. Railey and James F. Green, for appellant. Williams & Rollins and A. R. Taylor, for respondent.

NORTONI, J.

This is a suit for damages accrued to plaintiff on account of the negligence of defendant. Plaintiff recovered and defendant prosecutes the appeal. Plaintiff, a little girl aged about seven years, sues by her next friend duly appointed and qualified in that behalf.

Plaintiff received her injury on defendant's railroad track in Poplar street, about 50 feet east of the crossing of Fourth street therewith in the city of St. Louis. Poplar street runs east and west, and Fourth street north and south. Defendant maintains a railroad track in the center of Poplar street, and at the time in question was operating its locomotive and a train of 30 cars to the eastward along the public thoroughfare mentioned. The locomotive attached to this long train of cars was a switch engine which was being operated to the eastward on Poplar street with the tender of the locomotive in the front. At the time of her injury, plaintiff was but six years of age and without the consent of her mother had wandered from her home, about a half block from where she was hurt, to a grocery store situate at the northeast corner of Fourth and Poplar streets. The evidence for plaintiff tends to prove that she came out of the grocery store on the northeast corner of Poplar and Fourth streets and started in a southeasterly direction across Poplar street toward her home, when the forward end of defendant's approaching train, which it seems she did not observe, was about a block to the west or immediately east of Broadway. As plaintiff walked diagonally across Poplar street and upon defendant's track, it is said she took a few steps to the east or southeast on the track and was then run upon by the locomotive and dragged for a considerable distance by the step which is attached across and beneath the tender of the engine. As a result of the collision, plaintiff's left foot was crushed so as to occasion the amputation of the lower portion of her leg between the knee and the ankle.

The petition avers as negligence on the part of defendant, first, a combination of circumstances to the effect that it operated its engine and train to the eastward on Poplar street with the tender in front of the engine, and without exercising any care whatever to watch for persons ahead of said tender, engine, and cars, and without using any care to control the movement of said tender, engine, and train of cars to prevent running same against and on plaintiff and injuring her, and without using any care to warn plaintiff of the approach of said engine, tender, and cars, etc. For a second specification of negligence, the petition counts upon the ordinance of the city of St. Louis, imposing the duty upon railroads operating locomotives by steam power to keep the bell attached thereto constantly sounding, to the end of warning persons of their approach, and avers that defendant breached the duty thus enjoined by wholly omitting and failing to sound the bell on its engine as it moved along Poplar street before and at the time of plaintiff's injury. Besides the facts above stated, there is an abundance of evidence in the record tending to prove that at the time in question defendant operated its locomotive with the tender thereof forward and about 30 cars attached at from five to eight miles per hour in Poplar street, which is a public thoroughfare of the city, without making observations for the safety of persons on the street. Indeed, it is conceded the locomotive and train did not stop even when plaintiff was injured, and that the engineer knew nothing of the unfortunate incident until some time thereafter. As before stated, at the time of her injury, the little child was en route diagonally across the street from the grocery store and upon defendant's tracks and the view was unobstructed for more than a city block when she might have been seen approaching the track oblivious to danger.

It is proved in the case and not denied that the...