Court Compton v. Missouri Pacific Railway Company

• Decision Date: 07 May 1912
• Parties: COURT COMPTON et al., Respondents, v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant
• Court: Missouri Court of Appeals

147 S.W. 842

165 Mo.App. 287

COURT COMPTON et al., Respondents, v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

May 7, 1912

Appeal from St. Louis City Circuit Court.--Hon. Charles Claflin Allen, Judge.

AFFIRMED.

Judgment affirmed.

R. T Railey and James F. Green for appellant.

(1) There was not sufficient testimony to authorize a finding that plaintiffs' son was struck while on the crossing and therefore the court should have directed a verdict for the defendant. A verdict based on conjecture should not stand. Lynch v. Railroad, 112 Mo. 432; Moberly v. Railroad, 98 Mo. 183; Rapp v. Railroad, 106 Mo. 423; Peck v. Railroad, 31 Mo.App. 128; Myers v. City, 108 Mo. 480; Haynes v. Trenton, 133 Mo. 126; Moore v. Railroad, 28 Mo.App. 622; Patton v. Railroad, 179 U.S. 658; Warner v Railroad, 178 Mo. 125; Goranson v. Mfg. Co., 117 Mo.App. 412. (2) Plaintiff's instruction No. 1 is erroneous in permitting the jury to determine whether the crossing was a public highway. 3 R. S. 1909, sec. 10446; Walton v. Railroad, 67 Mo. 56. (3) Plaintiff's instruction on the measure of damages is erroneous. Wilburn v. Railroad, 36 Mo.App. 215; Camp v. Railroad, 94 Mo.App. 284; Stephens v. Railroad, 96 Mo. 207; Badgley v. St. Louis, 149 Mo. 122; Hart v. Railroad, 94 Mo. 256; Parsons v. Railroad, 94 Mo. 286; Goss v. Railroad, 50 Mo.App. 614; Smith v. Fordyce, 190 Mo. 30; Carpenter v. McDavit, 53 Mo.App. 404. (4) Plaintiffs' instruction as to the measure of damages is in conflict with defendant's, and was not cured by it. McKinnon v. Coal Co., 120 Mo.App. 164; Totter v. Railroad, 122 Mo.App. 417; Sack v. Railroad, 112 Mo.App. 476; Wojtylak v. Coal Co., 188 Mo. 283; Shepard v. Railroad, 189 Mo. 373; Porter v. Railroad, 199 Mo. 96; Hamilton v. Railroad, 114 Mo.App. 513.

William Hilkerbaumer for respondents.

(1) The former ruling of this court on the first appeal (147 Mo.App. 414), that respondent's case was a proper one for the jury, is the law of this case, and no reason is shown by appellant why it should reconsider that ruling. Mangold v. Bacon, 237 Mo. 496, 141 S.W. 650. (2) There is ample evidence in the record justifying a submission of the case to the jury and the finding of a verdict for the plaintiffs because there was nothing in plaintiffs' proof permitting any inference that the deceased was a trespasser, and the inference from plaintiffs' proof that the boy was struck by defendant's car while on the board crossing is not only fair but convincing. Defendant's evidence should not be considered in determining this point. Moore v. Transit Co., 194 Mo. 1; Holloway v. Kansas City, 184 Mo. 19; Hollweg v. Tel. Co., 195 Mo. 149; Taylor v. Iron Co., 133 Mo. 349; Frick v. Railroad, 75 Mo. 595; Montgomery v. Railroad, 181 Mo. 477; Deitring v. Transit Co., 109 Mo.App. 524; Baxter v. Transit Co., 103 Mo.App. 597; Morrow v. Pullman, 98 Mo.App. 351; Chinn v. Railroad, 100 Mo.App. 576. (3) Plaintiff's first instruction is not subject to the criticisms offered by appellant. Russell v. Railroad, 70 Mo.App. 88; Boyd v. Springfield, 62 Mo.App. 456; Coulter v. Railroad, 5 N.D. 568, 67 N.W. 1046. (4) The trial court did not commit error in giving plaintiff's instruction on the measure of damages. R. S. 1909, sec. 5425; Potter v. Railroad, 136 Mo.App. 125; Pratt v. Railroad, 139 Mo.App. 502; Boyd v. Railroad, 236 Mo. 54; Childress v. Railroad, 141 Mo.App. 667. (5) Respondents are entitled to ten per cent of the judgment because this appeal is frivolous. R. S. 1909, sec. 2084.

NORTONI, J. Reynolds, P. J., and Caulfield, J., concur.

OPINION

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 sixteen 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 with 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 plaintiff 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 considering the habits of children, that the child had not had time to pass beyond the track or to climb upon the car when the collision occurred. It appears the two railroad tracks, together with the space between them, occupied about seventeen and one-half feet of ground, and when the child was seen walking leisurely northward, he was two feet south of the south rail of the south track. Though the witness said he observed the child two or three minutes before, the statement that his horse walked but 100 feet during the interim is of equal, if not of more, probative worth in the case, for the first statement essentially savors of opinion and the latter of fact. It is well known that the ordinary horse will walk about four miles, or 21,120 feet, per hour, and, therefore, in one minute a horse will walk one-sixtieth of this distance, which is 352 feet. While to walk 100 feet would consume less than one-third of a minute. On this testimony the court obviously did not err in refusing to direct a verdict for defendant in conformity with its theory that the child was not shown to have been upon the crossing and in the danger zone when the collision occurred. Especially is this true when it is remembered that, at the time the request for a peremptory instruction was made, at the conclusion of plaintiffs' evidence, no testimony whatever...