Graney v. St. Louis, I. M. & S. Ry. Co.

• Decision Date: 09 February 1897
• Citation: 38 S.W. 969
• Court: Missouri Supreme Court
• Parties: GRANEY et ux. v. ST. LOUIS, I. M. & S. RY. CO.

38 S.W. 969

GRANEY et ux. v. ST. LOUIS, I. M. & S. RY. CO.

Supreme Court of Missouri, Division No. 1.

February 9, 1897.

RAILROAD COMPANIES — SPEED IN CITIES — NEGLIGENCE — INJURY TO BOY NEAR TRACK.

1. Where an ordinance prohibiting the running of trains within a city at more than six miles an hour is repealed on condition that the railroad company will maintain gates at street crossings, it is continued in force until the railroad company complies with the requirements of the substituted ordinance.

2. Where a railroad train was run in a city at an illegal rate of speed, and the death of a boy was the immediate result thereof, these facts authorize recovery, unless negligence of the boy is shown.

3. That a boy 11 years old stood so near a passing train that he was thrown under the wheels by the suction does not authorize the court to declare, as a matter of law, that he was guilty of contributory negligence.

4. Where a boy standing within three feet of a track was thrown under a passing train by the suction created, an instruction that he, as a matter of law, was not negligent, if he stood a sufficient distance from the track to avoid being struck by the train, is erroneous.

5. Witnesses who testify as to the effect of air on mail sacks thrown from running trains are incompetent thereby to testify as to the effect produced by a train running 20 miles per hour on a boy weighing 65 pounds standing within three feet of the track.

Robinson, J., dissenting.

Appeal from circuit court, St. Louis county; Rudolph Hirzel, Judge.

Action by Peter Graney and wife against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for plaintiffs. Defendant appeals. Reversed.

Martin L. Clardy and Henry G. Herbel, for appellant. W. B. Thompson, for respondents.

MACFARLANE, J.

This is an action by plaintiffs, who are husband and wife, to recover the statutory damages of $5,000 for the death of their minor son, James Graney, caused, as alleged, by the negligence of the employés of defendant in running one of its freight trains in the city of St. Louis. The petition charges, in substance, that on the 18th day of January, 1891, there were in force three valid ordinances in the city of St. Louis, — one prohibiting any car or cars, or locomotive, propelled by steam power, to be run at a rate of speed exceeding six miles per hour; another requiring such locomotive to ring a bell constantly while running within the city limits; and the third imposing a penalty for violation of either of the other two. The petition then charges the circumstances under which the son of plaintiffs was killed substantially as follows: The said James, the infant son of plaintiffs, was on the 18th day of January, 1891, standing upon the crossing of Dorcas street, in the city of St. Louis, alongside the track of defendant's railway, and at a sufficient and proper distance away from said track, and away from the locomotive and cars operated by defendant, when the servants of defendant, without warning, recklessly, negligently, and at a speed prohibited by an ordinance of said city, ran a train of freight cars over said track, by reason of which their said son fell, and was sucked under the wheels of the cars, and was thereby killed. The only negligence charged is the violation of these ordinances. Defendant answered by a general denial and a plea of contributory negligence. It also averred that said ordinances, regulating the speed of trains, had been repealed, since the death of James Graney, by an ordinance limiting the rate of speed to 20 miles per hour. On the trial the ordinances pleaded were read in evidence. It was admitted that James Graney was killed on the 18th of January, 1891, by being run over by a train of freight cars operated by defendant, and that he was the minor son of plaintiffs. It was shown that, on the date mentioned, defendant controlled and operated a railroad, a portion of which was located in the city of St. Louis. It has two tracks, running north and south, which cross Dorcas street at right angles. This street runs east and west through the city. On Sunday afternoon, January 18, 1891, James Graney, then 11 years and 9 months old, and four other boys, who were from 1 to 2 years older, came down Dorcas street from the west, intending to cross the railroad of defendant. When close to the track, a train of 23 freight cars, drawn by an engine, came onto the crossing from the south in front of them. The engine bell was not ringing, and the train was running 20 or 25 miles per hour. The boys stopped at various distances from the track to await the passage of the train. James Graney stood between the two tracks, 2 or 3 feet from the west rail of the east track, upon which the train was passing. When about half or two-thirds of the train had passed, he was seen to whirl around, and fall upon the ground, and roll over. In rolling, his legs got upon the rail, and the cars passed over them. From this injury he died on the next day. These are substantially the facts proved on the trial. There was no material conflict except as to the speed of the train and giving the signals. No witness gives the speed of the train at less than 6 miles per hour. The other boys who were with deceased testified to a speed of over 20 miles per hour. At the close of all the evidence defendant's counsel asked the court to give an instruction in the nature of a demurrer to the evidence, which was refused. The court gave each party a number of instructions, and refused some asked by defendant. No. 7, given at request of plaintiffs, was as follows: "The court instructs the jury that plaintiffs' minor son, James Graney, was entitled, on the 18th day of January, 1891, to pass over and upon Dorcas street, where the tracks of defendant cross the said street, if the jury find, from the evidence, that said Dorcas street was a public traveled street of the city of St. Louis, and to stop at any place upon said street away from the track of said defendant on which it was operating its train; and if the jury find, from the evidence, that said James Graney was away from the said track of said defendant a reasonably sufficient distance, so that he was not struck by the locomotive or train, or by any motion or other agency caused by the approach of said train, and the jury further find that the said James Graney, without any fault or negligence on his part, was drawn in by the air caused by the velocity of said train being operated in excess of six miles an hour, and by that cause alone was injured by having his feet drawn in and under the said train, and that such injury was the cause of his death on the 19th day of January, 1891, then the jury will find for the plaintiffs." There was a verdict and judgment for plaintiffs, and defendant appealed.

1. Counsel for appellant insist, in the first place, that the repeal of the ordinance in force at the date of the accident defeats the right of action grounded upon negligence in running the train at a rate of speed prohibited by the ordinance. The argument is based upon the well-recognized principle of law that "a right to have one's controversies determined by existing rules of evidence is not a vested right," and, "like other rules affecting the remedy, they must, therefore, at all times, be subject to modification and control by the legislature." Cooley, Const. Lim. 450; Coe v. Ritter, 86 Mo. 282. What the effect of a repeal of the existing ordinance of the city would be, in making proof of negligence which rests entirely upon its violation, might be an interesting question. But an examination of this record does not show that the ordinance in question was repealed, in respect to the limitation on the rate of speed of trains, by the subsequent ordinance...