Dalton v. Missouri, K. & T. Ry. Co.

Decision Date19 December 1918
Docket NumberNo. 18813.,18813.
Citation208 S.W. 828,276 Mo. 663
PartiesDALTON v. MISSOURI, K. & T. RY. CO. et al.
CourtMissouri Supreme Court
Concurring Opinion Filed and Motion for Rehearing Denied February 15, 1919.

Appeal from Circuit Court, Montgomery County; James D. Barnett, Judge.

Action by George Dalton, by James Dalton, his next friend, against the Missouri, Kansas & Texas Railway Company and others. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

J. W. Jamison and N. S. Brown, both of St. Louis, and Mahan, Smith & Mahan, of Hannibal, for appellants.

Chas. W. Wilson and 3. E. Dyer, both of St. Charles, W. C. Hughes, S. S. Nowlin, and E. P. Rosenberger, all of Montgomery City, Eugene Nelson, of Hannibal, and Avery Dudley &Killam, of Troy (W. A. Dudley, of Troy, Chas. W. Wilson, of St. Charles, O. K. Avery, of Troy, and Shepard Barclay, of St. Louis, of counsel), for respondent.

GRAVES, J.

In an action bottomed upon negligence, the plaintiff, through his next friend, recovered a judgment against the defendants for $22,500, from which this appeal was taken. At the date of the accident George Dalton was a rather bright boy, past the age of 12 years.

In the switchyards in the northern part of Hannibal, Mo., is a track running near the bluff, which track is the west track of those yards. To the west of this track is a public road, and across this road, close into the bluff, is a store and some residences. These switchyards are a quarter of a mile or more in length, and lie between the public road above mentioned and the Mississippi river. Plaintiff and another boy were upon a car then standing upon this west switchyard track (near the north end thereof) and he was knocked therefrom by the force of a coupling or running together of other cars with the bunch of cars where plaintiff was located. In his fall he was thrown under the wheel of the car and both arms cut off.:n an attempt to obviate the question of the plaintiff being a trespasser (pure and simple), the petition alleges at great length sundry alleged usages, as follows: That said switchyards were uninclosed; that the inhabitants along this public road obtained their water from a spring near the river and from the river; that in the yards for some years there had been a sand digger, which was attractive to children when it was in operation; that for a number of years there had been a constant and continuous use of these yards by the citizens, including children; that there was (opposite these dwellings and store) a swimming pool in the river which was much used by boys at the season of this accident, and these boys daily crossed these yards; that for years there had been a continuous use of these yards by the public going from north to south through them; that for years these yards had been continuously used by children as a playground; that for years children and especially boys were continuously in, around, and upon the cars standing in this switchyard; that defendants had knowledge of all these condition;;.

The petition then charges the following as negligence upon the part of the defendants: (1) That plaintiff could have been seen in his perilous position by the train crew which coupled up the cars in time to have warned him and saved him; (2) failure to keep a lookout or guard in the switchyards to warn plaintiff and others of the movement of cars; (3) failure to fence yards, so as to exclude persons therefrom, especially children; (4) failure to sound bell or whistle, or otherwise warn persons in such yards, that cars were to be moved; (5) the coupling of the cars together with unnecessary force; (6) failure of defendant's servants to use ordinary care to see plaintiff' perilous position.

After unsuccessful motions to strike out large portions of the petition the defendant answered: (1) General denial; (2) contributory negligence upon the part of George Dalton; (3) contributory negligence upon the part of the father and mother of George Dalton; (4) that George Dalton was a trespasser, and defendants had no reason to believe that he would be upon a car located upon private property; and (5) that George Dalton was at the time of his injury on the car in violation of a city ordinance of the city of Hannibal, which ordinance is duly pleaded.

Reply was in the nature of a general denial.

For the plaintiff the principal instructions read:

"3. And the court further instructs the jury that if they find from the evidence that at the time the plaintiff received his injuries and for a number of years prior thereto the switchyards and railroad tracks where the plaintiff received his injuries had been daily used by large numbers of persons as a passway in going from one point to another in that vicinity, and that numbers of people daily walked over, upon, across, and along said tracks and at all hours of the day, and that at said time, and for a number of years prior thereto, women and children were accustomed daily to travel on said tracks, gathering coal which had fallen from the cars onto said tracks, and if the jury further find from the evidence that at the time the plaintiff received his injuries, and for a number of years prior thereto, children and young boys had been and were in the habit of congregating in said switchyards and tracks and using the same as a playground, daily playing in said switchyard upon and along said railroad tracks and on and around the cars standing on said tracks, and you further find from the evidence that the agents, servants, and employés of the defendants who did the switching and handling of cars in said switchyard or tracks knew that people were so in the habit of daily using said switchyard and tracks as a passway, and knew that children and young boys were so in the habit of daily using switchyard and tracks as a playground, and were accustomed daily to play in and about said switchyard, and on, around, and about the ears standing on said tracks, then it was the duty of the defendants, their agents, servants, and employés, when engaged in switching or moving cars on said side track, to exercise ordinary care to ascertain whether anybody was upon said tracks or cars, and to exercise care to notify any persons on or about said tracks or on or around the cars standing on said side track or in any place of danger, of the proposed movement of cars on said side track, to enable them to get to a place of safety.

"And if the jury further find from the evidence that at the time the plaintiff received his injury the plaintiff, George Dalton, was a boy about 12 years of age, and was sitting on an empty car which was standing on said side track, and that the agents, servants, and employés, while plaintiff was so sitting on said stationary car, without any warning or notice to the plaintiff, caused other cars to be switched onto said side track and propelled with such violence and force against the cars already standing on said side track as to knock the plaintiff off of said car and cause said cars to run over plaintiff's arms and produce the injuries complained of, and if you further find from the evidence that the agents, servants, and employés who switched said additional cars to said side track, at the time the plaintiff received his injuries, saw the plaintiff sitting on said car standing on said side track, or by the exercise of ordinary care could have seen him in time to have warned the plaintiff of his danger, and thus have avoided injuring him, but neglected to warn the plaintiff, then the jury should find in favor of the plaintiff, and assess his damages at such sum as the jury may believe from the the evidence will compensate plaintiff for the injuries sustained, not exceeding the sum of $50,000, notwithstanding the jury may further find that the plaintiff was a trespasser and was guilty of negligence in being on said car at the time, and notwithstanding the jury may also further find that the plaintiff, George Dalton, was on said car at the time of his injuries in violation of the provisions of the ordinance of the city of Hannibal produced in evidence.

"4. And the court further instructs the jury that if they find from the evidence that the defendants knew at the time the plaintiff was injured that children and young boys were accustomed daily to play on said side tracks and on and around the cars standing on said side tracks, as set forth in a preceding instruction, then it was the duty of the defendants before switching the cars on said side track to take reasonable care to see that said track was clear, and to notify or warn any such child or boy as might be upon said side track or cars standing thereon in time to enable them to escape the dangers resulting from the switching of cars on said track."

We have given at length the grounds of alleged negligence as well as the two main instructions for plaintiff, to the end that plaintiff's theory of the case may fully appear. Questions raised and the evidence bearing thereon will be noted in the opinion.

I. An important question in this case is the status of the plaintiff at the time of his injury. He was at the time in the private switchyards of defendants, and this fact, standing alone, would make him a trespasser, pure and simple. But this fact does not stand alone. There is proof of the continuous use of the switchyards by boys, and also the fact that boys played in, upon, and around the standing cars in the switchyard. There is also in evidence an ordinance of the city of Hannibal Which reads:

"Any boy under the age of eighteen years, who shall in this city, without having lawful authority to do so, mount or climb upon, enter or hang to, any freight, gravel, baggage, hand, or passenger car, or locomotive engine, when the same is in motion, or is attached to or forming a part of any train of cars; or to any locomotive engine, whether the same is in motion or standing upon any railroad track, shall be deemed guilty of a...

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