Butler v. Chicago, Rock Island & Pacific Ry. Co.

• Decision Date: 03 April 1911
• Citation: 136 S.W. 729,155 Mo.App. 287
• Parties: HARVEY BUTLER and IDA BUTLER, Respondents, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant
• Court: Kansas Court of Appeals

136 S.W. 729

155 Mo.App. 287

HARVEY BUTLER and IDA BUTLER, Respondents, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

April 3, 1911

Appeal from Buchanan Circuit Court.--Hon. L. J. Eastin, Judge.

Judgment affirmed.

Brown & Dolman for appellant.

Charles C. Crow, Nevill & Grier and Vinton Pike for respondents.

OPINION

JOHNSON, J.

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 three thousand dollars 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 one hundred 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:

"Q. The child that met with the accident came in with you on the load of wheat, did it? A. Yes, sir.

"Q. Did you pay any further attention to it, at all, after it got out of the wagon? A. Yes, sir, yes, sir, yes, sir!

"Q. Did you know that it was on this track? A. Yes, sir it was out in front of the horses part of the time, and part of the time they were on the track, where I could keep my eye on them.

"Q. Which way did you drive in from? A. I drove in from the east, towards the west.

"Q. And your horses were headed to the west? A. Yes, sir.

"Q. And you say that you knew that the child was on the track, at the west end of the car? A. Yes, sir, on the track, and supposed to be as safe as in your back yard.

"Q. Well, the cars were made for the purpose of being moved? You knew that, of course? A. Yes, sir.

"Q. And that the railroad track was made for the purpose of moving them on? You knew that? A. Yes.

"Q. And it never occurred to you that it was dangerous for a child to be on a railroad track, that was part of the actively operated part of a railroad? A. I didn't suppose the child was in danger, because, to my supposition, the train was on the other side of the depot, entirely.

"Q. And you never even looked to where the train went after it came to the depot? A. I heard it, but it was almost impossible for me to see it, because the depot was in the way, and those other cars."

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 sometime--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 on to the house track, he went to the conductor and inquired about the purpose of the switching. We quote from his testimony:

"Well, when I saw them pulling ahead, I began to walk back towards the depot. I was at the west end of the depot, and there is two switches east of the depot; one drops off to the south, to go below the main line, and the other north on the north side, and I supposed, maybe, that they were going to drop in on the south of the main track, but when I saw them pulling up the line far enough to pass the last switch, I knew then that they were coming in on the north side of the depot, on the track where these people were.

"Q. What did you do then? A. I rushed up to the conductor . . . and asked him how far he was coming in on that track.

"Q. What did he say? A. Why, he says: 'Just far enough to catch that Wabash car.'

"Q. Did you know where the Wabash car was then? A. No, sir.

"Q. Just go on and tell what else was said. A. I said: 'I thought if you were coming in far enough to strike my grain car, you had better go around and notify those people. They may get hurt.'

"Q. What did he say? A. I don't think he said a word.

"Q. Did he move? A. Well, I kept walking on, myself, and he got up and followed me, but not close to me--a few feet behind me.

"Q. Did he do anything? A. No, sir.

"Q. Did he try to signal the engineer? A. Not that I saw."

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:

"Q. Just go on and tell what happened. A. Well, I kept walking on up towards the east end of the depot, and as soon as I saw for myself that it was not one of the cars that sat beyond the wagon crossing, why, I rushed across to notify these fellows, myself, but they was coming back there with such force, and after they had struck these cars, only a street between those cars and the empty, that it was shown later they were after, I hadn't time to do anything; I got across, myself, and hollered.

"Q. What did Butler do? A. I hollered at Butler. I just hollered: 'Look out!' to everybody. I just hollered: 'Look out!' Now, Butler, I think heard me, but the crash came so close to my yell--

"Q. What did you say about the crash? A. It came so close after my yell, that he didn't have time--

"Q. Well, what was Butler doing, when you got across there? A. He was scooping wheat.

"Q. Where was his wagon? A. Right by the side of the door.

"Q. It was not forty feet away? A. No, sir.

"Q. Where was his team? A. One team was hooked to the wagon.

"Q. How fast was that car coming back? A. Well, I don't know. It was coming back with pretty good force, it looked to me like.

"Q. Did it hit his car? A. Yes, sir.

"Q. How far did it knock that car? A. About fifteen feet, I judge.

"Q. What did it do to the wagon? A. Well, I had a grain sheet there, a heavy canvas, with a gas pipe in each end of it; I used it to save the wasteage of the wheat. We throw one end of it into the grain floor, and the other end into the wagon, and at this time, when the car was shoved by, the end of the gas pipe struck against the end of the wagon, and knocked the spring seat down, tilting the iron up, and almost hitting Butler, but it didn't hit him.

"Q. Where was the conductor at that time? A. The conductor at that time, was on the platform, south of where the car was.

"Q. Why didn't you notify this man? A. I didn't have time. I did the best I could.

"Q. Well, at the time you told the conductor, would you have had time then to have notified them? A. Oh, yes, I would have had plenty of time.

"Q. Why didn't you notify them then? A. Because I thought, from the remark I got from the conductor that they were not coming in there that far."

The two children playing at the west end of the grain car were run over and both were killed instantly.

The facts stated, collected from the evidence introduced by plaintiffs, are contradicted in some particulars by the evidence of defendant, but in the view we take of the case it is not necessary to refer to the contradicting evidence. The court overruled the demurrer to the evidence offered by defendant and at the request of plaintiff, instructed...