Court Compton v. Missouri Pacific Railway Company

• Decision Date: 22 March 1910
• Citation: 126 S.W. 821,147 Mo.App. 414
• Parties: COURT COMPTON and AGNES COMPTON, Respondents, v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant
• Court: Missouri Court of Appeals

126 S.W. 821

147 Mo.App. 414

COURT COMPTON and AGNES COMPTON, Respondents, v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

March 22, 1910

Appeal from St. Louis City Circuit Court.--Hon. Eugene McQuillin Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

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

(1) There was not sufficient testimony to justify a finding that plaintiffs' child was struck on the crossing, and therefore the court should have directed a verdict for the defendant. A verdict cannot be based on mere conjecture. Connelly v. Railroad, 113 S.W. 235; 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., 186 Mo. 307; Caudle v. Kirkbride, 117 Mo.App. 412; Swearingen v. Railroad, 120 S.W. 773. (2) The court erred in giving plaintiffs' instruction No. 2. Barney v. Railroad, 126 Mo. 382; Roddy v. Railroad, 104 Mo. 247; Rushenberg v. Railroad, 109 Mo. 117; Swartwood v. Railroad, 111 S.W. 306; Witte v. Stifel, 136 Mo. 302; DeBolt v. Railroad, 123 Mo. 506; Kelly v. Benas, 217 Mo. 11; 2 White on Personal Injuries on Railroads, sec. 1102, p. 1641. (3) Said instruction No. 2 is also erroneous in that it authorizes a recovery on a cause of action not alleged in the petition. Chitty v. Railroad, 148 Mo. 74; Yarnell v. Railroad, 113 Mo. 570; Walheir v. Railroad, 71 Mo. 514; McManemee v. Railroad, 135 Mo. 440; McCarty v. Railroad, 144 Mo. 397; Ecton v. Railroad, 125 Mo.App. 230; Bromley v. Lumber Co., 127 Mo.App. 158. (4) The court also erred in giving plaintiffs' instruction on the measure of damages. 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.

William Hilkerbaumer for respondents.

(1) There is ample evidence shown by the record justifying a submission of the case to the jury and the finding of a verdict by them for the plaintiff, 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 Company, 194 Mo. 1; Holloway v. K. C. 184 Mo. 19; Hollweg v. Bell Tel. Co., 195 Mo. 149; Taylor v. Iron Co., 133 Mo. 349; Frick v. Railroad, 75 Mo. 595; Montgomery v. Railroad, 181 Mo. 477; Dertring 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. (2) The court did not err in giving instruction 2. Barney v. Railroad, 126 Mo. 372; Elliott on Railroads, sec. 1260; Louisville & N. v. Popp. (Ky.), 27 S.W. 992; Ostertag v. Railroad, 64 Mo. 421; Schmitz v. Railroad, 119 Mo. 256; Kelly v. Benas, 217 Mo. 11; Cyc. Vol. 29, pp. 464-7; Fink v. Mo. Furnace Co., 10 Mo.App. 61; Kelly v. Parker-Washington Co., 107 Mo.App. 490; Dwyer v. Railroad, 12 Mo.App. 597; Schmidt v. Distilling Co., 90 Mo. 284; Cahill v. Stone Co., 96 P. 84; Denver Tramway v. Nichols, 84 P. 813; Fort Worth Ry. v. Cushman, 113 S.W. 198; Sackewitz v. Biscuit Co., 78 Mo.App. 144; Fullerton v. Railroad, 84 Mo.App. 498; Schroeder v. Michel, 98 Mo. 43. (3) Instruction No. 2 was proper under the pleadings, because it properly qualified instructions asked by defendant to the effect that the defendant was not liable if deceased was a trespasser, which was an affirmative defense. (4) The court did not commit error in giving plaintiffs' instruction on the measure of damages. Acts 1905, p. 135; Potter v. Railroad, 136 Mo.App. 125; Pratt v. Railroad, 122 S.W. 1125.

OPINION

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 to step upon or very near one of the tracks of said railway company, said defendant, on said day, by its engineer, conductor, servants, agents and employees in charge of a locomotive, car or train of cars of defendant, carelessly, negligently and unskillfully caused or suffered one of its cars to run against and upon said Willis Compton, and to inflict serious and fatal injuries upon him from which the said Willis Compton died on the same day. That said car striking or running upon said Willis Compton was attached to other cars forming a train of cars standing on defendant's said track, and was standing partly or wholly upon or very near said crossing; that without warning and without looking to see whether any person was at the time upon said crossing or tracks of defendant, or in danger of being injured by moving said car, defendant negligently, carelessly and unskillfully caused or suffered other cars or a locomotive to run up and against and to strike said train of cars standing upon said track as aforesaid, and caused them to move violently and suddenly forward upon said crossing, without any warning to said Willis Compton, causing the car nearest said crossing, or upon said crossing, to run upon said Willis Compton and to injure him so that he died on or about the 23d day of September, 1908, as the result of the injuries so received by him," etc.

Besides submitting the question of defendant's liability by instruction on the theory presented in the petition the court gave, at plaintiffs' instance, a second instruction whereby liability against it was predicated on the theory of the "turntable cases." The first instruction for the plaintiff authorized a recovery if the child was on the crossing, in the act of passing over the tracks on the public highway and came to his death through the negligence of the defendant in moving the cars suddenly forward without warning, etc. Such was the theory of liability proceeded upon in the petition and other instructions should have confined the right of recovery thereto. The plaintiffs, however, seized upon evidence introduced by defendant tending to show that the child was playing or swinging upon the car standing on its private tracks about six feet from the crossing and induced the court to submit this as well as a ground of liability against defendant on the theory that it was remiss in its duty in permitting the empty cars to stand upon its track near to the road crossing in...