Compton v. Missouri Pac. Ry. Co.

• Decision Date: 07 May 1912
• Parties: COMPTON et al. v. MISSOURI PAC. RY. CO.
• Court: Missouri Court of Appeals

147 S.W. 842

COMPTON et al. v. MISSOURI PAC. RY. CO.

St. Louis Court of Appeals. Missouri.

May 7, 1912.

Rehearing Denied June 4, 1912.

1. RAILROADS (§ 350)—CROSSING ACCIDENTS —ACTIONS—QUESTION FOR JURY.

Evidence, in an action for the wrongful death of a child, held sufficient to present a question for the jury whether the child was struck by a railroad car while on a highway crossing, although the testimony of defendant's witnesses, tending to show that he was on the car and was thrown off by its sudden starting, was not directly contradicted.

2. RAILROADS (§ 312)—CROSSING ACCIDENTS —DUTY TO WARN.

Where freight cars are standing on a railroad track within a few feet of a highway crossing, it is negligence to run a locomotive against them with great force, for the purpose of making a coupling, without first ascertaining whether there is any one on the crossing and warning them of danger, although there is no intention of crossing the highway, and hence no statutory duty to make observations or sound warnings.

3. RAILROADS (§ 299)—CROSSING ACCIDENTS —CHARACTER OF CROSSINGS.

Where a railroad company constructed a crossing across its tracks connecting two public highways, erected the usual crossing sign, and permitted it to be used by the public, an instruction, in an action for the death of a person at such crossing, authorizing the jury to find that it was a public highway, was not erroneous, although it had never been platted as a public highway, and had not been used for a sufficient length of time to enable the public to acquire any rights by proscription, since, although not technically a public highway, the railroad company was bound to exercise the same care for the protection of persons using it as at a public highway.

4. RAILROADS (§ 320)—CROSSING ACCIDENTS —PERSON NEAR TRACK.

In an action for the death of a person by being struck by a railroad car at a crossing, an instruction, authorizing a recovery if he was on the crossing and near to or on the track, and the railroad company failed to exercise ordinary care for his protection, was not erroneous, since, if he was on the crossing and near to the track, the railroad company owed him the same obligation as if he was actually on the track.

5. DEATH (§ 104)—ACTIONS—INSTRUCTIONS— DAMAGES.

Under Rev. St. 1909, § 5425, authorizing a recovery, in an action against a railroad company for wrongful death, of not less than $2,000, nor exceeding $10,000, in the discretion of the jury, an instruction that if the jury found for plaintiff they should award such sum as in their discretion they deemed proper under the circumstances in evidence, within the statutory limits, in connection with a further instruction that no recovery could be had for loss of society or companionship, or for grief or pain caused by the death, was not erroneous, in the absence of any request by defendant for a more specific instruction, since it did not submit any erroneous element of recovery.

Appeal from St. Louis Circuit Court; Chas. Claflin Allen, Judge.

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

Robert T. Railey and James F. Green, both of St. Louis, for appellant. William Hilkerbaumer, of St. Louis. for respondents.

NORTONI, J.

This is a suit for damages accrued to plaintiffs under the statute on account of the wrongful death of their infant child through the negligence of defendant. Plaintiffs recovered, and defendant prosecutes the appeal.

Plaintiffs are the father and mother of Willis Compton, who came to his death when aged between five and six years, through being run upon by defendant's car on a public crossing at Greenwood, in St. Louis county. It appears that the crossing involved is not parcel of a public platted street, but was constructed across defendant's railroad by it as a continuation of Sutton avenue, which terminated immediately adjacent to the north side of defendant's right of way. At the place where plaintiffs' child was run upon, defendant maintains and operates two railroad tracks side by side, which run east and west. Sutton avenue runs north and south, and terminates at the north side of defendant's right of way; and Greenwood avenue runs east and west immediately along and adjacent to the south side of defendant's right of way. To the end of affording communication as a highway between these two streets, defendant constructed a crossing for wagons and teams on its tracks, and erected thereat a large sign of the usual type, bearing the words "Railroad Crossing." The crossing is constructed of three-inch planks securely laid between the rails and adjacent thereto for the full width of the tracks, and about a foot outside thereof, where it is joined by approaches, constructed of macadam, from Sutton avenue on the north and from Greenwood avenue on the south. It is in evidence and, indeed, conceded that this crossing has been used by the public generally for as much as six years. The crossing so constructed for wagons and teams was 16 feet in width, and immediately on the west thereof defendant had standing three empty coal cars, which were detached from a train. The evidence for plaintiffs tends to prove that their son, Willis, aged between five and six years, was upon the crossing and the plank portion thereof, walking northward to the intersection of Sutton avenue, when one of these empty coal cars was thrust upon him and occasioned his death. The coal car which was run upon the child was situate immediately west of the crossing on defendant's track, so that the east end of the car was about six or eight feet west of the west side of the crossing. Defendant's switchmen, consisting of a foreman and four men, were engaged in switching at the time with a locomotive engine. As the locomotive came from the westward to pick up the three empty coal cars, it collided therewith such force as to precipitate the car next to the crossing upon plaintiffs' child and occasion his death. It appears no lookout or observation for persons upon the crossing whatever was made by defendant's servants; and no warning was given to the effect that the car was about to be suddenly moved forward.

It is argued, first, that the court should have directed a verdict for defendant, because of the failure of the proof to show that the little child was upon the crossing at the time. For defendant, two witnesses testified that they did not see the child on the crossing; but saw him in mid-air, falling from the car toward the crossing, simultaneously with the collision of the locomotive with the car which thrust it forward. In other words, it is the theory of the defense that the child was not upon the crossing at the time, but instead had climbed on the end of the empty coal car, and was in that position when he was precipitated to his injury by the impact of the collision. The argument is that, because two witnesses, who are not pointedly contradicted, testified to this fact for defendant, and because the evidence for plaintiffs tending to prove the child was upon the crossing is in part an inference, the whole is insufficient to support the judgment. We are not so persuaded; for there is sufficient in the record tending to prove plaintiffs' theory of the case, and the question is one for the jury.

One witness for plaintiffs gave testimony to the effect that he was driving eastward on Greenwood avenue south of defendant's right of way and adjacent thereto, in full view of the crossing when he saw plaintiffs' little boy walking to the northward upon the crossing, and about two feet south of the south rail of the south track. The child was run upon by a car located on the north track. This witness said that he observed the child so walking northward on the crossing three or four minutes before the collision. But he said, too, that he drove his wagon and horse only 100 feet between the time he observed the child on the crossing, immediately south of the track, and the collision. The witness was driving his horse in a walk; and from this it was competent for the jury to find, when...