Finn v. United Rys. Co. of St. Louis

• Decision Date: 05 November 1924
• Docket Number: No. 18578.,18578.
• Citation: 267 S.W. 416
• Parties: FINN v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Court of Appeals

267 S.W. 416

FINN v. UNITED RYS. CO. OF ST. LOUIS.

No. 18578.

St. Louis Court of Appeals. Missouri.

November 5, 1924.

Rehearing Denied December 31, 1924.

Appeal from St. Louis Circuit Court; Anthony F. Ittner, Judge.

"Not to be officially published."

Action by Lillian Finn against the United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Affirmed.

Charles B. Bates, T. E. Francis, and Carter, Nortoni & Jones, all of St. Louis, for appellant.

T. J. Lyster, H. G. Whelan, and Kinealy & Kinealy, all of St. Louis, for respondent.

SUTTON, C.

Plaintiff brings this suit under the Damage Act (R. S. 1919, § 4217 et seq.) for the death of her minor son, Francis S. Finn. The case was here on a former appeal which was taken from a judgment in favor of plaintiff for the sum of $2,000. Upon that appeal the judgment was reversed and the cause remanded for insufficiency of the evidence to support the judgment. Finn v. United Railways Co. (Mo. App.) 237 S. W. 883. Upon a retrial of the case there was a verdict in favor of plaintiff for the sum of $2,000, and judgment was given accordingly. Defendant again appeals.

The injuries which caused the death of plaintiff's son were suffered in an accident occurring on the 27th day of November, 1917, about 6 o'clock in the evening, at the intersection of Park and Nebraska avenues in the city of St. Louis. Park avenue runs east and west, and Nebraska avenue runs north and south. At the time of the accident the defendant owned and operated a system of street railways in the city of St. Louis. The system included tracks on Park and Nebraska avenues. The defendant's Park avenue cars and also its Compton avenue cars traversed the same track going westward on Park avenue as far as Nebraska avenue. At this point the Park avenue cars continued westward on Park avenue, while the Compton avenue cars turned southward on Nebraska avenue by means of a switch at the intersection of Park and Nebraska avenues. On the evening of the accident in question a Park avenue train, consisting of a motor car and a trailer, was proceeding westward on Park avenue. On arriving at the intersection of Park and Nebraska avenues the front end of the motor car turned into the switch leading from Park avenue to Nebraska avenue, the nose of the motor car passing a few feet beyond the point of the switch. This train was followed on Park avenue by a Compton avenue car, which in turn was followed by a Park avenue car. The Compton avenue car stopped a distance, variously estimated by the witnesses at 10, 12, and 15 feet, east of the rear end of the trailer, and the Park avenue car stopped 10 feet east of the Compton avenue car. The cars were crowded and passengers were standing in the aisles. The decedent was riding as a trespasser on the trailer. He was standing on the drawbar at the rear end of the trailer, facing westward, his arms outstretched, holding himself in position by grasping parts of the trailer. While the boy was in this position and unconscious of the danger that threatened him, the Park avenue train was backed till the rear end of the trailer collided with the front end of the Compton avenue car, and the boy was crushed between the rear end of the trailer and the `front end of the Compton avenue car, and died from his injuries the next morning at 1 o'clock.

The purpose of backing the train was to get the nose of the motor car out of the switch so that the train could proceed westward oh Park avenue. The boy had been riding on the rear end of the trailer for a distance of at least one block. The motorman of the Compton avenue car observed this. He saw the train starting its backward movement and saw the boy standing on the drawbar in the position described. There was some evidence tending to show that the motorman of the Compton car did not sound the gong or give any other warning signal. The train backed very slowly. The rate of speed was variously estimated by the witnesses at from one to five miles per hour, and there was evidence tending to show that the speed was even lower than one mile per hour. One witness described the backward movement of the train thus:

"The Park trailer came back very slowly— as fast as a very slow walk, perhaps of a child's walk. It crept back. It came back at a uniform rate all the time, as fast as a child's walk, I would say a small child, about three years old, or perhaps a mile an hour."

All the witnesses described the backward movement of the train as very slow. The conductor of the trailer said that it came back so slow that he did not know it was moving back. There was no appreciable jolt or jar resulting from the collision.

Theodore Clark, a witness for plaintiff, testified:

"I was standing on the north side of Park avenue, about on the building line on Nebraska avenue. I saw the boy on the back end of the trailer car, standing up, like this, with his feet on the drawbar and with his hands stretched out, like this, holding on. He was facing the trailer car. As soon as the train started to back up, I ran up to the door of the trailer and hollered to the conductor to stop, there was a boy on the back end of the car. The car kept on backing up. I didn't see the conductor do anything. The door of the car was closed. I ran back along the side of the car and by the time I got back there the cars had hit. I at first went from my position on the sidewalk and went up to the door of the trailer car. The door was on the north side of the trailer car at the middle of the car between the two ends. The door was closed."

The motorman of the Compton avenue car, produced by defendant, testified:

"I saw this little boy on the trailer after we reached Ohio avenue. I saw him riding on the trailer. All at once the car started coming back. The first thought with me was for me to get back out of the way, and I reached my head over on one side, stood over as far as I could, and looked back. The car was crowded and I saw the car—the lights behind me shining. At the same time I rang four bells to back up. The conductor gave me no response. So that in the time the other car, the trailer, was within 6 feet of my car when I did that, and just as I was turning around it crashed. My car could have been backed very quickly. The boy stood still on the drawbar with his arms stretched out, holding right on the edge of the windows. He did not change his position from the time I first saw him until the time he was hurt. When the Park avenue train started to back up I touched my gong twice, like that, looked over the passengers' heads over the seats to see if I could back up and rang four bells for my conductor and saw the light of the other car right behind me; looked like it was right up against me, very near. It was a general practice on the road, to leave a space of 10 feet between the cars when they were stopped, one behind the other. After the accident I saw that the Park avenue car was about 6 feet back of my car. I stood un at the front end of my car right away and looked back there. I never went back. I just looked back from the front end of my car."

It was shown, by way of impeachment, that the motorman testified, in giving his deposition previous to the trial, as follows:

"The Park train started to back up. I hit the gong a couple of times, looked back over my passengers; they were crowded and standing in the aisle—and I saw another car right behind, and I turned right around, and just about that time the trailer struck my car. I did not give my conductor a bell or signal that I wanted to back."

It was shown by expert testimony that the Compton car could have been started backward instantaneously by pulling the reverse lever around and turning on the power. At the time of the accident it was dark. The headlights of the cars and the lights inside the cars were burning. Decedent was 13 years old, and was a bright, alert boy. The conductor of the Compton avenue car did not testify, nor did the motorman of the Park train.

Subsequent to the disposition of the case here upon the former appeal, the plaintiff filed an amended petition, wherein she charges, inter alia:

"That after said cars had been stopped in the position aforesaid, and while said minor son of plaintiff was standing on said drawbar on the rear of said trailer of the said Park line train, and was oblivious of the peril of his position and the danger of a collision of said trailer with said Compton line car, the servants and employés of the defendant in charge of said Park line train started to back same, so as to get it off of the tracks turning into Nebraska avenue, and ran same backward until the hind end of the trailer of said train collided with the front end of the said Compton line car, and thereby plaintiff's son was crushed between the hind end of said trailer and the front end of said Compton line car, whereby he received injuries from the effect of which he died the next day; that although the conductor of said trailer of said Park line train and said motorman of said Compton line car knew of the position of plaintiff's son upon the drawbar of said trailer and of the danger of said collision and of the peril of plaintiff's said son and of the latter's obliviousness thereof, the servants and employés of defendant, nevertheless, negligently backed said Park line train against the said Compton line car, and the conductor of said trailer negligently failed to notify plaintiff's son of the danger of his position or of said collision, and negligently failed to notify the motorman or said train, or to cause him to be notified, by the other conductor in said train, of the danger to plaintiff's son, or to stop the movement of the train, and the motorman of said Compton line car negligently failed to sound his gong or otherwise warn plaintiff's said son of the danger of said collision, and negligently failed by voice or sign or by sounding gong or bell to notify and warn the motorman...