Frick v. St. Louis, Kansas City & Northern Ry. Co.

Decision Date30 April 1882
Citation75 Mo. 595
PartiesFRICK v. THE ST. LOUIS, KANSAS CITY & NORTHERN RAILWAY COMPANY, Appellant.
CourtMissouri Supreme Court

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Appeal from St. Louis Court of Appeals.

AFFIRMED.

The train in question consisted of ten cars pushed by a locomotive, which also drew a caboose after it. Three of the cars were loaded with stone. The rest were empty. The train came from the east. The accompanying diagram shows the scene of the injury.

TABULAR OR GRAPHIC MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE TABLE

Wells H. Blodgett for appellant.

The plaintiff not being where she had a lawful right; not being where the defendant's servants were bound to look out for her, or expect her to be, the defendant's duty toward the child began only when its servants discovered her upon the track. Their duty did not begin when she could have been discovered, if the men in charge of the train had been expecting her, or if they had been specially charged with the duty of keeping a lookout for her. The question of when Mrs. Hahn discovered the child was wholly immaterial. The real questions for determination were: When did the men on the train see the child, and what efforts did they then make to stop? but on those material inquiries the plaintiff offered no testimony. If, in operating a train upon its private right of way, and while its servants are engaged about their usual and ordinary labors, they come so close upon a child that after it is discovered it is impossible for them, with all their efforts, to stop the train in time to save the child from injury, we cannot understand how, under those circumstances, it could be said that they had failed in the performance of any duty that they owed the child, because it seems well settled, both on reason and authority, that the persons in charge of the train had a right to act on the presumption that no child would be there. Mulherrin v. R. R. Co., 81 Pa. St. 375; Bannon v. R. R. Co., 24 Md. 125; Maschek v. R. R. Co., 71 Mo. 276; Gaynor v. R. R. Co., 100 Mass. 214; Hughes v. R. R. Co., 66 Mo. 325; Turner v. Thomas, 71 Mo. 596; Kay v. R. R. Co., 65 Pa. St. 276; Morrissey v. R. R. Co., 126 Mass. 377; Singleton v. R. R. Co., 7 C. B. (N. S.) 289; Phil. & Reading R. R. Co. v. Hummell, 44 Pa. St. 378; Cauley v. R. R. Co., 11 Reporter, 67; Meeks v. R. R. Co., 52 Cal. 602.

HOUGH, J.

This was an action in the name of Lulu Frick, a minor, by her next friend, to recover damages for personal injuries sustained by her, by reason of having been run over by a gravel train of the defendant, midway between Grand Avenue and Theresa street, in the city of St. Louis. The train which inflicted the injury consisted of ten flat cars, seven of which were empty and three loaded with stone, propelled by an engine in the rear thereof, to which were attached a tender and a caboose.

The negligence of the defendant, which, it is alleged, occasioned the injury, is thus stated in the petition: “That immediately before said accident occurred, and while said train was moving toward the said Lulu, the servants and employes of defendant in charge of said train were duly warned of the approaching danger to said child by one Mrs. Hahn, who ran rapidly toward said train, and who, by loud cries and violent gestures, besought said servants and employes to stop said train of cars; but the said servants and employes carelessly, negligently and recklessly disregarded said warning, although they had ample time and means to stop said train in season to avert said accident; that the said injuries to the said Lulu Frick, resulting in the loss of her arm and leg, were caused by the carelessness and negligence of defendant, its servants and employes, in neglecting and failing to fence the said road, or place watchmen along the same, whereby the said Lulu Frick was permitted to wander upon said track, and the negligent and reckless disregard of the warning aforesaid, and in failing and neglecting to observe or notice the said Lulu Frick upon said track, or provide any watchmen upon the rear end of said train, to see that said track was clear, and in causing said train to be moved then and there at a dangerous speed; that said Lulu Frick was in full view of said train of cars for a considerable length of time before said train of cars reached her; that by the exercise of ordinary prudence, care or watchfulness upon the part of the employes in charge of said train, the said Lulu would have been observed, the train stopped and the accident averted.”

The plaintiff was a little more than two years of age, when injured, and was quite active. She resided with her parents about two hundred feet north of the defendant's track.

Mrs. Maggie Hahn, who resided in the house next to that of plaintiff's parents, testified that a short time previous to the accident, which occurred between nine and ten o'clock in the morning, she left her house with her little boy to look for her cow; that she went straight south to the railroad track, leaving a path which runs from the vicinity of plaintiff's house across the railroad a little to her right. She then walked west along the railroad to Grand Avenue, a distance of about three hundred feet, and not finding her cow there, she sent her son to the next crossing, the distance to which is not stated, and when he returned, he said to her, that a train was coming--to get off the track. She immediately turned, saw the train in question, and also saw Lulu Frick, the plaintiff, standing in the middle of the track, five or six feet west of where the path crosses the track. The cars were then about one hundred and fifty or one hundred and sixty feet from the child, and were moving about as fast as witness could run. She at once ran toward the child, waiving her hand to attract the attention of the men on the train, calling to them to stop, that there was a child on the track, and calling also to the child to get off the track. The child attempted to get off, but was run over by several cars, which mangled one leg and arm, which were afterward amputated. The track was level and almost straight, and the witness said the child could have been seen a great distance. There was a brakeman on the front car, and several other persons between that car and the engine. A locomotive engineer and machinist testified that the train could have been stopped in seventy-five feet after the engineer received the signal, if running at four miles per hour, and in ninety-five feet if running at five miles per hour. How the plaintiff got upon the track does not appear. The witnesses supposed that she followed Mrs. Hahn. The defendant demurred to this evidence. The demurrer was overruled, and this action of the court is alleged as error.

1. DEMU RRER TO EVIDENCE.

In the case of Buesching v. The St. Louis Gaslight Co., 73 Mo. 219, 231, this court said: “In passing upon a demurrer to the evidence, the court is required to make every inference of fact in favor of the party offering the evidence, which a jury might, with any degree of propriety, have inferred in his favor, and if, when viewed in this light, it is insufficient to support a verdict in his favor, the demurrer should be sustained. Wilson v. Board of Education, 63 Mo. 137. But the court is not at liberty, in passing on such demurrer, to make inferences of fact in favor of the defendant, to countervail or overthrow, either presumptions of law, or inferences of fact, in favor of plaintiff; that would clearly be usurping the province of the jury.”

As the train in question was moving through the suburbs of a city between two streets about seven hundred feet apart, along an unfenced track with several dwellings on either side thereof, and as the view of the track in front of the train was unobstructed, and as the law requires the bell to be rung when the train approaches within four hundred and forty feet of a public crossing and kept ringing until it crosses the same, and as the train at the time Mrs. Hahn first saw it, was within a few feet of the place where it was the duty of the trainmen to commence ringing the bell and to observe whether any persons were approaching the crossing, and as Mrs Hahn was on the track at the crossing, waiving her hands and hallooing, and as the child was standing in the center of the track in a direct line between the train and Mrs. Hahn one hundred and fifty or one hundred and sixty feet from the train, and the train could have been stopped within ninety-five feet, the jury might fairly infer that the men in charge of the train saw, or by the exercise of ordinary care could have seen, the child, in time to have stopped the train before it ran over the child. Besides, it appears that the child was near a path which crossed the railroad track, and although no person had a right to go upon or across the defendant's track at that place, without the consent of the company, yet the presence of that path was itself a warning to the servants of the company that persons were in the habit of trespassing upon the track at that point, and that at least as long as the track remained unfenced, they might reasonably apprehend a continuance of such trespassing. It is true the law does not require fences to be erected at such places, but the company may lawfully erect them if it so desires. Edwards v. Hann. & St. Jo. R. R. Co., 66 Mo. 567. We are of opinion, therefore, that the demurrer to the evidence was properly overruled.

The defendant then introduced testimony showing that there were only four servants of the company in charge of...

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