Henry v. Missouri Pac. Ry. Co.

• Decision Date: 07 February 1910
• Citation: 125 S.W. 794,141 Mo. App. 351
• Parties: HENRY v. MISSOURI PAC. RY. CO.
• Court: Missouri Court of Appeals

125 S.W. 794

141 Mo. App. 351

HENRY v. MISSOURI PAC. RY. CO.

Kansas City Court of Appeals. Missouri.

February 7, 1910.

1. NEGLIGENCE (§ 85)—CONTRIBUTORY NEGLIGENCE —CHILDREN.

A child's conduct, considered from the standpoint of the ordinary child, may be contributorily negligent as a matter of law.

2. NEGLIGENCE (§ 85)—CONTRIBUTORY NEGLIGENCE —EVIDENCE.

A boy over 14 years old had worked about engines, cars, and tracks for railroad employés, and had lived near a turntable for 5 years, and had passed within 15 feet of it every day for 6 weeks. While aiding an employé to turn the table, he seated himself on the revolving table, with his legs hanging over the edge. He saw that there would not be room for his legs between the timbers at the place where the table track and the spur track would meet, and to escape he attempted to draw up his legs, but one of them was caught and crushed. Held, that he was as matter of law guilty of contributory negligence.

3. APPEAL AND ERROR (§ 843) — QUESTIONS REVIEWABLE—IMMATERIAL QUESTIONS.

Where the contributory negligence of plaintiff, suing for a personal injury negligently inflicted, is shown by his own case, the sufficiency of the plea of contributory negligence will not be considered.

Appeal from Circuit Court, Bates County; C. A. Denton, Judge.

Action by William B. Henry, by next friend, against the Missouri Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

Martin L. Clardy and Scott & Bowker, for appellant. Miles S. Horn and Thos. J. Smith, for respondent.

ELLISON, J.

This is an action for personal injury alleged to have resulted from the negligence of defendant's servants, in which plaintiff had judgment in the trial court for $5,000.

Two branches of defendant's railroad enter the city of Butler. A turntable is provided for turning the engines running on one of these, and known as the "L. & S. Branch." Defendant had a servant at that place named Scales, whose duty it was to take care of the engines after they arrived, were turned on the turntable, and run out, about 50 feet, over a cinder pit. At the latter point the engineer would leave it in his charge until next day or at least until it was to be taken on the road again. On the day of plaintiff's injury Scales asked him to go along to the turntable and help turn the engine. He went with Scales, it may be said as a volunteer on invitation; that is to say, he said that he knew he was not employed to go and that he was not to be paid. He knew that Scales had no authority to employ him. The ground where the table was sloped off or declined from the level from which the spur track started, so that when such track reached the table it was elevated above the surface 2½ or 3 feet, and the table was, of course, so constructed that the rails thereon were flush with the ends of the rails on the spur track. The engine was run onto the table, and plaintiff took hold of one of the levers on one side of the table, next to the table, and near the end of the track on the table, while others took hold by his side, but nearer the end of the lever; others pushed at the other lever. As he walked round, approaching the end of the spur track, he noticed, as his petition states, that he could not "conveniently" walk up the incline or grade, which, as already stated, held the spur track above the surface. He therefore let go the lever and seated himself on the revolving table by springing or jumping thereon, with his legs, from the knees down, hanging over the edge or side. He at first thought there would be room for his legs between the timbers at the place where the table track and the spur track would come into position. But he soon saw there was not, and says he then thought to escape the danger by drawing up his legs, and did get one up, but not the other, and it was caught and crushed.

The petition is framed upon the theory that if plaintiff had not been under the disability of youth his conduct would have been easily classed as contributory negligence. The face of the whole case shows this and, without the concession, the evidence establishes it without so much as a doubt. The demurrer interposed by defendant puts before us the question whether the case made by the evidence in plaintiff's behalf was such as to make it obligatory upon the trial court to declare as a matter of law that, notwithstanding his youth, he was guilty of contributory negligence and could not recover. That children may be declared to be sui juris as a matter of law has been recently decided by the Supreme Court in McGee v. Railroad Co., 214 Mo. 530, 114 S. W. 33. The case may be of such nature that, though a...