Buddy v. Union Terminal Railway Company

• Decision Date: 23 December 1918
• Citation: 207 S.W. 821,276 Mo. 276
• Parties: BRADLEY B. BUDDY, Appellant, v. UNION TERMINAL RAILWAY COMPANY
• Court: Missouri Supreme Court

207 S.W. 821

276 Mo. 276

BRADLEY B. BUDDY, Appellant, v. UNION TERMINAL RAILWAY COMPANY

Supreme Court of Missouri, Second Division

December 23, 1918

Appeal from Buchanan Circuit Court. -- Hon. Thomas B. Allen, Judge.

Affirmed.

Frank H. Miller and Mytton & Parkinson for appellant.

(1) The court properly permitted the minor upon coming of age to prosecute the case in his own name. 67 Mo. 660. (2) In placing two small, light cars, when not in use, unequipped with brakes, upon its tracks practically at the door of the school house without causing them to be fastened to the rail or without enclosing them in any manner, when they saw and knew that the small children in attendance upon the school were constantly using them to play upon and about, and when they knew they were dangerous and that injury was likely to ensue, the defendants were guilty of using their property in a manner which was legally wrong and negligent as recognized in the "turn table" or "attractive nuisance" or "attractive appliance" cases. Railroad v. Stout, 17 Wall. 657; Railroad v McDonald, 152 U.S. 273; Lynch v. Nurdin, 41 R C. L. 422; Koons v. Iron Mountain Railroad Co., 65 Mo. 592; Nagel v. Mo. Pac. Ry. Co., 75 Mo. 653; Berry v. Railroad, 214 Mo. 593; Kelly v. Benas, 217 Mo. 1; Schmidt v. Kansas City Distilling Co., 90 Mo. 284; Fink v. Missouri Furnace Co., 10 Mo.App. 61; Porter v. Brewing Assn., 24 Mo.App. 1; Kelley v. Parker-Washington Co., 107 Mo.App. 490; Barney v. Hannibal & St. Joseph Railroad, 126 Mo. 372; O'Hara v. Gaslight Co., 131 Mo.App. 428; O'Hara v. Gaslight Co., 244 Mo. 395; Hite v. Bakery Co., 168 Mo.App. 431; Dyer v. Mo. Pac. Ry. Co., 12 Mo.App. 597; Houck v. Railroad, 116 Mo.App. 559; Smith v. Dole Packing Co., 82 Mo.App. 9; Oberholt v. Vietchs, 93 Mo. 422; Moran v. Pullman Palace Car Co., 134 Mo. 641; Jensen v. Kansas City, 181 Mo.App. 359; Witte v. Stifel, 126 Mo. 295; Arnold v. St. Louis, 152 Mo. 173; Hildebrand v. May Merc. Co., 141 Mo. 122; Hall v. Telephone Co., 141 Mo.App. 183; Couer D'Alene Lumber Co. v. Thompson, 215 F. 8.

John E. Dolman for respondent.

The sole question presented upon this appeal is under the undisputed evidence that a standard railroad flat car standing upon a practically level track in the private yard of the railway company, without any brakes and without being chained to the track, is an attractive nuisance and a "dangerous machine" within the meaning of the "turntable" doctrine. Barney v. H. & St. J. Ry. Co., 126 Mo. 372; Compton v Mo. Pac. Ry. Co., 147 Mo.App. 414; Kaumeier v. City Elect. Ry., 116 Mich. 306, 40 L. R. A. 385; Elliott on Railroads, sec. 1260; Central Branch Ry. Co. v. Henigh, 23 Kan. 347.

OPINION

FARIS, J.

Plaintiff, then approaching ten years of age, was hurt in 1904, by the alleged negligence of defendant. In 1913 he sued defendant, laying his damages at $ 30,000. Upon a trial had toward the close of the year 1915, proof was adduced pro and con. At the close of all of the evidence defendant asked, and the court nisi gave to the jury a peremptory instruction that under the pleadings and the evidence their verdict should be for the defendant. Thereupon plaintiff took a nonsuit with leave. After an unavailing motion to get this nonsuit set aside he appealed.

Plaintiff in his petition invokes as his sole ground of recovery application of the well-known doctrine of the "turntable cases" to an injury accruing from certain small flat cars left standing unblocked, unlocked and unbraked upon defendant's track then under construction, under such situation, it is averred, as to make such cars an attractive plaything for children. Defendant's answer is a general denial, and a plea that plaintiff was when hurt a trespasser upon defendant's private premises, and that in this situation his injuries were wholly caused by his own contributory negligence.

The facts -- and it is already apparent that this case turns wholly upon the facts -- run briefly thus: Plaintiff when hurt was nine years and eight months old. He was a pupil in the fourth grade of the Floyd School in St. Joseph. Defendant was then engaged in constructing an extension of its tracks upon its right-of-way at a point about 150 feet distant from this school. In this construction work it used, among others, two small eight-wheeled flat cars, which the evidence on plaintiff's part shows to have been from 16 to 20 feet long, while that of defendant shows that these cars were at the time standard flat cars from 28 to 30 feet in length. We must, however, perforce the well-settled rule in a case wherein a demurrer to the evidence has been sustained, look only to the plaintiff's evidence on contradicted points. During the time of the building of this extension these small flat cars stood when not in use upon defendant's track for a period of from two to three months. Children from the Floyd School, among whom was plaintiff, over the objections of defendant, however, were in the habit of pushing these cars up and down the track, on which there was a slight grade of 3 1/2 inches per hundred feet. About the 1st day of June, 1904, while some six or seven or more of plaintiff's fellow-pupils -- whose ages ranged from 10 to 13 years -- were engaged in pushing one of these cars on this track they ran it against plaintiff and caught and pinched his left leg between the axle of the car and some construction material, namely, piling lying along the track; so that the calf of his leg was torn and the muscles thereof were in part destroyed. Subsequently, and after some three months, the injury wholly healed externally, but left the leg of plaintiff in a slightly undersized and a somewhat weakened condition. Some nine years after this accident and on account of a fresh injury to his toe, blood-poison developed and it became necessary by reason thereof to amputate plaintiff's leg. Answering categorically, the single expert witness who testified as to the proximate cause of the amputation said that "the former injury had nothing to do with the causation of the blood poisoning; the blood poisoning was caused by a subsequent injury nine years later."

The witnesses for plaintiff -- the physician excepted -- were schoolmates at the time of the occurrence of the injury to him. Their ages at that time were from 10 to 13 years. Eleven years had elapsed from the date of this injury till they testified in the case. Much divergence of opinion and much deviation from what must have been the actual facts are to expected. All this we find. Plaintiff's witnesses all agree that the cars were not fastened to the track, nor locked, nor blocked, nor braked, or even furnished with brakes. On other vital points they varied greatly. In an effort to fairly present the facts upon the points, (a) how large were these cars, (b) how many pupils it took to move them, and (c) what plaintiff was doing when he was hurt, we excerpt the testimony of all of plaintiff's witnesses on all these points.

The plaintiff testifying for himself said: From the time of my accident, and for two or three months before, they were in the habit of leaving small flat cars on the track by the school. There were two cars. They were small ordinary flat cars about half, about 16 to 20 feet, between 16 and 18 feet. They were lighter, very much lighter, than other freight cars." Upon the point of how many children it required to put the car in motion upon this track, he says "six children could move the car." Touching what he was doing when hurt he says: "When I first saw the car it was probably half a block or a little over below the school, being pushed north by about six or seven children eight or nine or ten years old. I was standing between the ends of the piling when the car got me. I don't remember whether I was pushing or getting ready to push. I started to push the car."

James V. Riley, approximately ten years old when plaintiff was hurt, testifying for plaintiff, said: "The cars were probably sixteen, or eighteen or twenty feet long. They were undersized flat cars." Upon the point of the force required to move these cars he is not definite, but speaking to the situation in this behalf at the very moment that plaintiff was hurt said: "We were playing with the car at the time he was hurt. Maybe a dozen children had hold of it. We were pushing it north at the time it caught him. He got caught between the boxing and the poles that were lying along the track, between the boxing and the end of the poles. I don't know what he was doing at the time."

Charles F. May, who was eleven years old at the time of the injury to plaintiff, said for plaintiff on the points mentioned, this: "It was a little, small flat car twenty feet long or a little over; it might have been a little shorter. It was light." Upon the question of the force -- kid power -- required to put these cars in motion or as to what plaintiff was doing he does not testify, but says as to the manner of his being hurt that "he was caught between the piling and the boxing on the east side."

Leo Baldin, at the time of the injury to plaintiff twelve years old, testifying for plaintiff, said: "The cars were not ordinary flat cars; they were small flat cars, consisting of eight wheels, with no brakes on them, about 18 feet long, of light construction. Five or six or seven children, ten to twelve years old, could push them back and forward there. I was not pushing the car the morning he was hurt. I was on top riding. There were about ten of us around there ranging from nine to twelve years old. I don't know how many were pushing the car. Too young to remember that."

Jesse Whaley, who was twelve years old when plaintiff was injured testifying for plaintiff, said: "The car might have been twenty feet long and might have been more. I don't...