Cherry v. St. Louis & S. F. R. Co.

• Decision Date: 01 April 1912
• Court: Missouri Court of Appeals
• Parties: CHERRY v. ST. LOUIS & S. F. R. CO.

145 S.W. 837

CHERRY v. ST. LOUIS & S. F. R. CO.

Springfield Court of Appeals. Missouri.

April 1, 1912.

1. RAILROADS (§ 326)—CROSSING INJURIES— NEGLIGENCE.

It is negligence to attempt to climb between moving cars at a street crossing without first investigating to determine whether they are likely to be moved, but it is not negligence to attempt to pass over them if there is no reasonable ground to expect that they will be moved.

2. RAILROADS (§ 350)—CROSSING ACCIDENTS —INJURIES — CONTRIBUTORY NEGLIGENCE— JURY QUESTION.

In an action for injuries by cars which were across a street crossing being started while plaintiff was climbing over them, whether plaintiff was guilty of negligence held a question for the jury.

3. RAILROADS (§ 312)—CROSSING ACCIDENTS —NEGLIGENCE.

An engineer in charge of a train stopped on a street crossing was not required to give warning when he moved the cars merely because they blocked the street when stopped.

4. RAILROADS (§ 350)—CROSSING ACCIDENTS —INJURIES—NEGLIGENCE.

The fact that a railroad engineer permitted his train to stand across a street longer than permitted by ordinance would not by itself require him as a matter of law to give warning upon starting to protect persons who might be crossing between the cars.

5. RAILROADS (§ 350)—CROSSING ACCIDENTS —JURY QUESTION—NEGLIGENCE.

In an action against a railroad company for injuries while plaintiff was crossing over cars which stopped across a street by the cars starting, whether the engineer was negligent in not giving warning before moving the cars held a question for the jury.

6. TRIAL (§ 253) — INSTRUCTIONS — APPLICABILITY TO ISSUES.

In an action against a railroad company for injuries in crossing cars stopped across a street by their sudden starting, an instruction that it was defendant's duty to exercise reasonable care to prevent any injury to persons upon the tracks and was negligent if it failed to do so was erroneous, where the evidence made it an issue whether there was any reasonable ground for the trainmen to believe that plaintiff might be climbing over the cars when they were started, so as to require them to use care to prevent injuring him.

7. NEGLIGENCE (§ 85)—CONTRIBUTORY NEGLIGENCE—MINORS.

The test of responsibility for contributory negligence is the ability to appreciate the danger, and it was error in an action for personal injuries to a 13 year old boy to permit the jury to consider plaintiff's age in determining what care he should use for his own safety, without any reference to his intelligence or knowledge of the dangers of his situation.

8. RAILROADS (§ 325)—CONTRIBUTORY NEGLIGENCE—CHILDREN—STANDARD OF CARE.

Plaintiff was 12 years and 9 months old at the time of the accident, but was 14 years old at trial, and was a bright boy, having shown as much intelligence on cross-examination as an adult, and he testified that he appreciated the danger of crossing between the cars which he was doing when injured, if an engine should move them. Held, that plaintiff's conduct in looking out for his own safety should be measured by the same standards as that of an adult, and his age should not be considered in determining whether he was guilty of contributory negligence.

9. DAMAGES (§ 185) — PERSONAL INJURIES—MEASURE—FUTURE SUFFERING.

Plaintiff can only recover damages for future pain and suffering from personal injuries, where the evidence shows with reasonable certainty that future suffering will result.

Appeal from Circuit Court, Butler County; J. C. Sheppard, Judge.

Action by Carl Cherry, by guardian, A. W. Greer, against the St. Louis & San Francisco Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

W. F. Evans, of St. Louis, and W. J. Orr, of West Plains, for appellant. Abington & Phillips, of Poplar Bluff, for respondent.

COX, J.

Action for damages for personal injury. Judgment for plaintiff for $1,750, and defendant has appealed.

The injury occurred in November, 1909. Plaintiff was at that time 12 years and 9 months old. The place of the injury was on Cedar street in the city of Poplar Bluff, where the tracks of defendant cross the street. This street was not traveled much at that point at that time, but was a public street, and was traveled to some extent. Defendant's servants often left freight cars standing on its switch track across this street which so blocked its passage that pedestrians were compelled to, and did, climb over between the cars in order to pass along the street, and for some years it had been a common practice for footmen on this street to cross in that way. On the morning of the injury this street was blocked by cars standing on the switch track, and plaintiff in going to where his father was at work climbed over between two cars in crossing. Soon thereafter, in going to town upon an errand for his father, he climbed over between the cars again. Upon his return he again did the same thing. Soon thereafter he went to town again upon an errand for another party, and again climbed over between the cars in the same way. On his return at this time, he climbed over between the cars as he had before, but, as he was in the act of doing so, the cars moved, and the big toe of his left foot was caught between the bumpers, and was badly mashed. The defendant ran but one freight train out of Poplar Bluff each day, and its schedule time to leave was 7 a. m., except on Tuesday and Saturday, when it left in the afternoon. The freight train came in in the evening, and remained at Poplar Bluff overnight. Plaintiff testified that he knew the train was to leave at 7 a. m. on that morning, and that he thought it had gone when he attempted to cross and was injured, which was at 7:30 a. m.; that no bell was rung or whistle sounded; that he did not look for the engine because he thought it had gone. There was other testimony that, if he had looked, he could not have seen the engine. The doctor who dressed the wound testified that his book showed that the plaintiff was treated by him at 7:10 a. m. Plaintiff further testified that had he known an engine was attached or about that he would not have attempted to cross for fear that he would have gotten hurt. An ordinance of Poplar Bluff prohibited a railroad company from blocking a street longer than five minutes at a time, also required a bell to be rung or whistle sounded when approaching a crossing, and before starting to move across or along a street.

Should the demurrer to the testimony have been sustained? The contention of appellant is that it should for the reason that plaintiff's testimony shows him to have been guilty of contributory negligence as a matter of law. This contention is based upon the fact that plaintiff climbed over between two cars standing across a street without first making an effort to ascertain whether or not an engine was attached, or the cars likely to be moved. It has often been held that it is negligence in law to attempt to climb over between two cars at a street crossing without first learning whether or not the cars are likely to be moved. The reason for that holding is that a person approaching a railroad track across a street and finding cars standing thereon is presumed to know that the company has no right to leave them there but a short time,...