Featherstone v. Kansas City Terminal Railway Company
| Decision Date | 12 December 1913 |
| Citation | 161 S.W. 284,174 Mo.App. 664 |
| Parties | JEWELL FEATHERSTONE by HUBERT A. CURTIN, her Next Friend, Appellant, v. KANSAS CITY TERMINAL RAILWAY COMPANY, Respondent |
| Court | Kansas Court of Appeals |
Rehearing Denied 174 Mo.App. 664 at 670.
Appeal from Jackson Circuit Court.--Hon. Walter A. Powell, Judge.
REVERSED AND REMANDED (with directions).
Kimbrell & White for appellant.
S.W Moore, S.W. Sawyer and Cyrus Crane for respondent.
Plaintiff, a minor nine years of age, sues by her next friend to recover damages for personal injuries she alleges were caused by negligence of defendant. The answer is a general denial and a plea of contributory negligence. A trial in the circuit court resulted in a verdict for plaintiff in the sum of $ 7500, but on the hearing of a motion for a new trial the court set aside this verdict and granted a new trial on the ground of error "in refusing to give instructions offered by defendant and in refusing to sustain defendant's demurrer to the evidence offered at the close of all the evidence." Plaintiff appealed from this judgment and contends that the cause was properly submitted to the jury.
The injury occurred in the afternoon of November 25, 1910, on a tract of land owned by a lumber company in Kansas City on the south side of defendant's railroad tracks. The tract extended south from Twelfth street to Fifteenth street and was a block wide, being bounded on the east by Elmwood avenue and on the west by Cypress avenue. A number of manufacturing and industrial concerns occupied a part of the tract as tenants of the lumber company and a spur railroad track owned by the lumber company connected these establishments with defendant's main line. This track ran from the main line in a southwesterly direction and then curved to the south and continued in a straight course through the middle of the tract to a point a few roads north of Fifteenth street where it ended. The track was used by defendant for switching and storing cars of freight received and forwarded by the tenants and other patrons of the lumber company. The south end of the property was vacant for a distance of 300 feet or more north of Fifteenth street and the track in this vacant block was used as an unloading track for cars of coal and other bulky freight. North of this place the track ran through an alley between the various manufacturing plants which, as stated, were tenants of the lumber company. Going out from defendant's main line the industrial track we have described ran down grade a short distance and thence on to the end on an increasing upgrade. At the south end the grade was so steep that cars set there for unloading were left with blocked wheels as well as with set brakes. Cars of coal and other freight were being almost constantly unloaded in the vacant block by patrons of the lumber company. These cars came in over the railroad of defendant and were switched to and from the end of the spur track by defendant's engines and train crews. Necessarily the cars had to be shoved in by the engines and whenever it became necessary to back into the end of the track with a string of cars, a brakeman was sent ahead to warn men at work in and about standing cars that the cars were about to be moved. Owing to the curve in the track and the narrowness of the alley this precaution was deemed essential to the protection of men engaged in loading and unloading cars standing at various places along the track. West of Cypress avenue was a thickly settled residence district and the vacant lot had been used as a common playground by the numerous children of the neighborhood. They played there constantly on and about the track and frequently went in and under standing freight cars. They were not invited by the lumber company or defendant to make such use of the premises but were suffered to play about the track and, according to the evidence of plaintiff, were included in the warnings given by the brakeman sent ahead of approaching trains. Some of the housewives of the neighborhood and their children were in the habit of gleaning coal that fell from coal cars being unloaded and sometimes while following that humble pursuit, went between and under cars to pick up lumps that fell on the track. Plaintiff had lived in the vicinity a year and a half and, in common with other youthful denizens had used the vacant lot as her playground and had become familiar with its customs and rules. She had...
To continue reading
Request your trial