Compton v. Missouri Pac. Ry. Co.

Decision Date22 March 1910
Citation147 Mo. App. 414,126 S.W. 821
PartiesCOMPTON et al. v. MISSOURI PAC. RY. CO.
CourtMissouri Court of Appeals

Appeal from St. Louis Circuit Court; Eugene McQuillen, Judge.

Action by Court Compton and another against the Missouri Pacific Railway Company. From a judgment for plaintiffs, defendant appeals. Reversed and remanded.

R. T. Railey and James F. Green, for appellant. William Hilkenbaumer, for respondents.

NORTONI, J.

This is a suit for damages alleged to have accrued to plaintiffs, under the statute, through the negligent killing of their infant son by defendant. Plaintiffs recovered, and defendant appeals.

It appears the defendant owns and operates a railroad running east and west through the town of Greenwood in St. Louis county. At the point where the little child lost his life, it maintains two parallel railroad tracks. The evidence tends to prove that Sutton avenue, in the town mentioned, is used by the public, and that a wagon crossing had been constructed across the railroad thereon. On its north track, defendant had standing several empty cars immediately adjacent to Sutton avenue and about six or seven feet from the west side of the street crossing. The one nearest the crossing was a coal car. The theory of plaintiffs' case is that their infant child, between five and six years of age, was on the railroad tracks at the public crossing and in the act of crossing the same when defendant, without warning, suddenly propelled one of the empty cars over and upon him and thus occasioned his death. It appears defendant's locomotive was doing some switching on the track west of the street crossing, and that it pushed other cars against those standing adjacent to the crossing with such force as to occasion them to move forward upon the crossing with rapidity, and this, too, without warning of any kind indicating the cars were about to be moved. One witness for the plaintiffs gave testimony tending to prove that the little child was seen on the crossing walking northward as though he intended to cross the tracks just prior to the cars being run upon him. There was evidence on the part of the defendant to the effect that the child had climbed upon the east end of the car next adjacent to the crossing and was hanging or swinging thereon when the cars further west were pushed against it, and that he was precipitated from the end of the car forward upon the track to his death, which resulted from the car passing upon or over him. There appears to be substantial evidence tending to prove the defendant was negligent in starting the car suddenly forward, without warning of any kind, and we believe, too, there is sufficient in the record tending to prove the plaintiffs' theory that the child was in the act of passing over the track on the public crossing at the time of his death. The question as to whether or not the child was in the act of passing over the track on the road crossing at the time, or was in fact swinging on the car, as insisted by defendant, was for the jury.

However, the judgment must be reversed, and the cause remanded, for the reason the court submitted the case on at least one theory not relied upon in the petition. The petition charged that the infant, Willis Compton was killed "at or near a crossing, which said crossing was an open, public highway running over defendant's tracks, and was known as Sutton avenue. That while said Willis Compton was upon or in said crossing, and was upon or about...

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    • United States
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    ... ... L. CANTLEY, COMMISSIONER OF FINANCE, RESPONDENTS Court of Appeals of Missouri, St. Louis January 3, 1934 ...           Appeal ... from the Circuit Court of Audrain ... & L. Assn., 55 Mo.App. 554; Steinberg v ... The Phoenix Ins. Co., 49 Mo.App. 255; Compton v ... Railroad, 147 Mo.App. 414; Smith v. Pullman ... Co., 138 Mo.App. 238; Collins v ... ...
  • Buddy v. Union Terminal Railway Company
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    ...Bott, 100 Mo. 62; Whipple v. Peter Cooper B. & L. Assn., 55 Mo. App. 554; Steinberg v. The Phoenix Ins. Co., 49 Mo. App. 255; Compton v. Railroad, 147 Mo. App. 414; Smith v. Pullman Co., 138 Mo. App. 238; Collins v. Hutchings, 194 S.W. 733; Nave v. Diekman, 208 S.W. 273; Sevier v. Harmon, 2......
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