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

• Decision Date: 01 April 1912
• Parties: CARL CHERRY, by Guardian, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant
• Court: Missouri Court of Appeals

145 S.W. 837

163 Mo.App. 53

CARL CHERRY, by Guardian, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant

Court of Appeals of Missouri, Springfield

April 1, 1912

Appeal from Butler Circuit Court.--Hon. J. C. Sheppard, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

W. F Evans and W. J. Orr for appellant.

(1) It is negligence as a matter of law for one to climb over the couplings of cars standing over a public crossing. Reimer v. Railroad, 46 F. 344; Railroad v. Pinchin, 13 N.E. 677; Andrews v. Railroad, 12 S.W. 213; Smith v. Railroad, 7 N.W. 398; Lewis v Railroad, 38 Md. 588. (2) A child twelve years and nine months old, possessing the intelligence and capacity of plaintiff is treated as sui juris when the question of his contributory negligence is in issue. McGhee v Railroad, 114 S.W. 33; Deechner v. Railroad, 98 S.W. 937; Mann v. Railroad, 100 S.W. 566; Paine v. Railroad, 38 S.W. 308; Messenger v. Denny, 137 Mass. 197; Twist v. Railroad, 39 Minn. 164; Murray v. Railroad, 93 N.C. 92; Spillane v. Railroad, 37 S.W. 198; Walker v. Railroad, 193 Mo. 48; Stigman v. Gerber, 123 S.W. 1041; Henry v. Railroad, 125 S.W. 794; Coy v. Railroad, 86 P. 468. (3) Instruction No. 5, on the measure of damages violates the rules announced in Spohn v. Railroad, 116 Mo. 617; Schwend v. Railroad, 80 S.W. 4.

Abington & Phillips for respondent.

(1) Defendant was guilty of negligence in blocking Cedar street with a connected string of box cars for a period of twelve hours or more. Brown v. Railroad, 50 Mo. 461; Burger v. Railroad, 112 Mo. 238; Schmitz v. Railroad, 119 Mo. 256; Wilkins v. Railroad, 101 Mo. 93; McCoy v. Railroad, 5 Houst. 599; Railroad v. Owen, 121 Ga. 220, 48 S.E. 916; Railroad v. Curtis, 87 Ga. 416, 13 S.E. 757; Smith v. Railroad, 84 Ga. 698, 11 S.E. 455; Mayer v. Railroad, 63 Ill.App. 309; Railroad v. Roberts, 91 N.W. 707; Duffy v. Railway, 56 S. E. (N.C.) 557; Todd v. Railway, 201 Pa. St. 558; Golden v. Railroad, 187 Pa. St. 635; Railroad v. Bowles, 72 S.W. 451; Railway v. Simon, 54 S.W. 309; Thompson v. Railway, 93 Mo.App. 548. (2) In the following cases it is held that the occupation of a street crossing by railroad engines, without authority of law, constitutes negligence per se on the part of the railroad company. Railway v. Robbins, 2 Colo.App. 313; Railway v. Curtis, 87 Ga. 416. (3) Defendant cannot justify its wrongful and unlawful conduct in blocking Cedar street at the time plaintiff was injured by the fact that it had blocked the street on a previous occasion, or that other parties had been in the habit of throwing litter in the street. Centralia v. Smith, 103 Mo.App. 438; People v. Gardner, 143 Mich. 104; Port Jarvis v. Close, 2 Silv. Sup. (N.Y.) 501; Chimine v. Baker, 32 Tex. Civ. App. 520, 76 S.W. 330. (4) The defendant company in this case had indulged in the habit for years of blocking the street where plaintiff was injured; pedestrians during these years had been in the habit of crawling under and between the cars; defendant was chargeable with notice of this fact and should move its trains across the street with a view of this habit of the people who were accustomed to pass between its cars, and if it failed to do so it was guilty of negligence. LeMay v. Railroad, 105 Mo. 361; Lynch v. Railroad, 111 Mo. 601; Murrell v. Railroad, 105 Mo.App. 88; Railroad v. Cross, 58 Kan. 424, 49 P. 599; Grant v. Railroad, 2 McArthur (D. C.) 277; Sheridan v. Railroad, 101 Md. 50; Railroad v. Grissom, 82 S.W. 670. (5) Plaintiff was not guilty of contributory negligence either as a matter of fact or a matter of law in attempting to climb between the cars blocking Cedar street, under the facts and circumstances of the case at bar. Johnson v. Railroad, 141 S.W. 475; Jennings v. Railroad, 112 Mo. 268; Schmitz v. Railroad, 119 Mo. 256; Burger v. Railroad, 112 Mo. 238; Wilkins v. Railroad, 101 Mo. 93; Railroad v. Landrigen, 191 U.S. 461.

OPINION

COX, J.

Action for damages for personal injury. Judgment for plaintiff for $ 1750 and defendant has appealed.

The injury occurred in November, 1909. Plaintiff was at that time twelve years and nine 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 over night. 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, and therefore, he should expect that they are liable to be moved at any time and for that reason the burden is cast upon him to ascertain whether or not they will be moved before he attempts to climb over between them. [Corcoran v. Railroad, 105 Mo. 399, 16 S.W. 411; Hudson v. Railroad, 101 Mo. 13, 14 S.W. 15.] The test as to the amount of care required on the part of the party approaching the cars is fixed by the probability of the cars being moved. A person approaching cars blocking a street crossing, would, in the absence of notice to the contrary, understand that the cars were only there temporarily and should expect them to be moved at any moment and where nothing further is shown, the court should declare as a matter of law that a party who should, under such circumstances, undertake to climb over between two cars without making any effort to ascertain whether or not they were likely to be moved before he could cross, could not recover damages if injured in the attempt; but if a state of facts be shown which makes it to affirmatively appear that there is no reasonable ground to apprehend that the cars will be moved, then it is not negligence as a matter of law to attempt to pass between them. [Johnson v. Railroad, 160 Mo.App. 69, 141 S.W. 475.]

This case is not the ordinary case of a train of cars blocking a street crossing. In this case, the street where this accident occurred was blocked a great deal of the time. Cars were left blocking this street all day at times when there was no engine near, and footmen were compelled to climb over between the cars to pass along the street at all hours of the day. On this particular occasion, the cars blocking this street had remained there all night, and according to plaintiff's testimony, up to 7:30 a. m., a half hour after the only engine that could be expected to move these cars should have left on its regular run, and had the engine left on time that morning there would have been no ground to apprehend danger in climbing over between these cars at any time after the engine had left the station. Under this state of facts, the usual rule to be applied to a person climbing over between cars at a street crossing does not apply and proof that the cars were blocking the street is not, of itself, sufficient to convict the plaintiff of contributory negligence in attempting to climb over between them. The time of...