Butler v. Chicago, R. I. & P. Ry. Co.
Citation | 155 Mo. App. 287,136 S.W. 729 |
Court | Court of Appeal of Missouri (US) |
Decision Date | 03 April 1911 |
Parties | BUTLER et al. v. CHICAGO, R. I. & P. RY. CO. |
Appeal from Circuit Court, Buchanan County; Lucian J. Eastin, Judge.
Action by Harvey Butler and another against the Chicago, Rock Island & Pacific Railway Company. From a judgment for plaintiffs, defendant appeals. Affirmed.
Brown & Dolman, for appellant. Chas. C. Crow, Neville & Grier, and Vinton Pike, for respondents.
This action is prosecuted by the parents of Thomas Butler, deceased, a minor, to recover statutory damages for the death of their son, which, they allege, was caused by the negligence of defendant. Plaintiffs recovered a verdict and judgment for $3,000, and the cause is before us on the appeal of defendant.
The death of the child, who was five years old, occurred in the morning of September 3, 1908, in the yards of defendant at Maysville. The tracks of defendant run east and west, and consist of a main and a passing track south of the station building, and a house or team track north of the building. Board platforms intervene between the building and the main and house tracks, and there is a platform at the east end of the building. A public road crosses the tracks just east of the station, and a wagon road runs parallel to the team track on the north side thereof. A car being loaded with wheat for transportation over the railroad stood on the team track at a place opposite the west end of the building. There was clear space of 100 feet or more west of this car which we shall call the "grain car," and there was nothing to prevent the operators of trains coming from the west from seeing the grain car and the team track. Immediately west of the car there was a small pile of rock screenings on the team track. Plaintiff Harvey Butler, a farmer, brought in a load of wheat he had sold to a shipper who was loading the grain car. His little boy, Thomas, accompanied him, and, when the wagon was backed up to the car door, the boy was permitted to alight and to engage in play with the little son of the station agent while the father proceeded with his work of shoveling the wheat into the car. A man inside the car distributed the wheat as it was shoveled in and a canvas apron placed from the end of the wagon into the car and attached to each vehicle caught the wheat that fell in shoveling, and which, but for the screen, would have been wasted. The boy did not go far away from where his father was working, but, with his playmate, spent most of his time at the pile of rock screenings. Another car, designated the "Wabash car," stood on the team track, between the grain car and the public road east of the depot. The evidence of plaintiff asserts that a space of eight or ten feet separated the two cars, while that of defendant is that the cars were coupled together. East of the public road three cars stood on the team track, one of them a car loaded with merchandise. Shortly after Mr. Butler had begun unloading, a freight train came in from the west on the main line, and stopped so that a number of freight cars and the caboose were west of the building. Mr. Butler had unhitched the forward team from the wagon before he began unloading, and, when the freight train came in, he unhitched the wheel horses, and then returned to his work. He testified as follows relative to the attention he gave his child during his work of unloading:
The train had business to transact, and the conductor came to the station, exchanged billing with the agent, and was informed that the merchandise and Wabash cars were to go east in his train. He remained on the platform for some time—long enough to play with another child of the agent—and at the proper time he directed a brakeman to detach the engine and eight forward cars from the train and have them run forward and switched back on the house track to pick up the merchandise and Wabash cars. This order was carried out while the conductor remained at the station. When the shipper of the wheat, who was at the station, observed that the detached engine and cars were switching onto the house track, he went to the conductor and inquired about the purpose of the switching. We quote from his testimony: * * * The train backed up rapidly, and, after bumping into the cars east of the public road, kept on coming at a rate of speed indicating that it would force the Wabash car into a violent collision with the grain car. We quote further from the shipper's testimony: " ...
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