Houck v. Chicago & A. Ry. Co.

• Decision Date: 13 February 1906
• Court: Missouri Court of Appeals
• Parties: HOUCK v. CHICAGO & A. RY. CO.

92 S.W. 738

116 Mo. App. 559

HOUCK v. CHICAGO & A. RY. CO.

St. Louis Court of Appeals. Missouri.

February 13, 1906.

1. NEGLIGENCE—USE OF LAND—PLACES ATTRACTIVE TO CHILDREN.

Machinery contained in a railroad pumphouse, situated in a place not ready of access from the public road, which is attended by an engineer, and which is, in fact, not of a character especially enticing to children, is not a "place attractive to children," within the meaning of the law of negligence.

2. SAME—MEASURE OF DUTY—TRESPASSERS.

A child who was warned to keep out of an engine room, and who, nevertheless, entered the room on his own motion, was a trespasser, and employés about the engine room were bound only not to carelessly injure him after his presence was known.

3. MASTER AND SERVANT—LIABILITY OF MASTER—TORTS OF SERVANT.

A master is liable for the tort of his servant, although committed in direct disobedience to his orders, if it is committed in connection with something within the scope of the servant's duty.

4. SAME.

An engineer in charge of an engine room, whose duty it was to keep children out of the room, and away from the machinery, acted within his apparent authority in asking a child to enter the room, and the master was liable for consequent injury to the child.

5. NEGLIGENCE—DUTY TO EXERCISE CARE— LICENSEES.

An engineer, who invited a child into the engine room, was bound to use care proportionate to the danger for the child's safety.

Appeal from Circuit Court, Audrain County; J. D. Barnett, Judge.

Action by John Houck, by his next friend, against the Chicago & Alton Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

Scarritt, Griffith & Jones, for appellant. Allen Stallings and P. H. Cullen, for respondent.

GOODE, J.

Action founded on a personal injury. The appellant company maintains a large tank near its depot in the town of Mexico, Mo., whence its locomotives take water. About 1½ miles from the depot is a pond which supplies water to the tank. This pond is immediately south of defendant's right of way. Between 20 and 30 feet west of it are an engine and pump used to force the water through pipes into the tank at the depot. The engine and pump are inclosed in a frame house 20 feet square of two rooms, and the evidence goes to show there is an entrance to each room, one on the west and one on the south side of the house. The access to this house from the railroad and the public road was quite inconvenient. It was fenced, except on the side next to the right of way; but there was a narrow opening between a post of the fence and a bridge abutment which a person could get through. This opening was 200 feet from the pumphouse. To get to the house from the railroad, it is necessary to go down a high dump. The motive power of the engine is gasoline, and a part of the contrivance is a cylinder in which the gasoline is exploded. A fly wheel, connected with the engine, is near the northwest corner of the room, and a metal shaft 2½ inches in diameter and 5 or 6 feet long ran from the engine to near the east side of the room. By means of a cog at its east end, which worked into another cog attached to a perpendicular shaft, the horizontal shaft transferred the power from the engine to the perpendicular shaft which ran below the floor, and, as we understand, operated the pump. The horizontal shaft ran east and west within four or five feet of the south wall of the building, and the space between it and the wall was vacant. The house is about a quarter of a mile from the city limits and the same distance from the nearest residence. Grown people and children skated on the pond in the winter and sometimes fished in it in summer, but did so against the will of the railway company. An employé of the appellant by the name of Kenealy was in charge of the engine house and pumping machinery. Signs were posted about the premises warning persons not to trespass. Respondent got hurt in the engine house on June 14, 1904. He was at the time 9 or 10 years old. As he was walking along the vacant space between the horizontal shaft and the south side of the room, his coat or jacket caught on a setscrew in the shaft, and the revolution of the shaft broke his arm. The boy was visiting that day at the home of Mr. Kenealy, where he was in the habit of going to play with Kenealy's children. At noon, Mrs. Kenealy prepared her husband's dinner and gave it to her daughter Hannah, or to her daughter and respondent, to take to him. Respondent swore that he carried the dinner and Hannah some drinking water, and that it was not uncommon for him to go along when Kenealy's dinner was taken to him. Kenealy was sitting under a clump of trees 50 or 60 feet from the engine house talking to some section hands, when the children arrived. They gave him his dinner and then respondent began to fish in the pond not far from the pumphouse.

Thus far the testimony is in accord but at this point it diverges. Respondent testified that, while he was fishing, he noticed that the engine had stopped and carried the information to Kenealy, who arose and started to the engine house, remarking to the respondent as he went into the door, "Turn the wheel," meaning, as we understand, the fly wheel of the machinery. Respondent turned the wheel, and at the same time Kenealy started the engine by reaching for and moving a lever which controlled its operation. As Kenealy did this, the respondent was going out of the room, and, as he went out, his jacket caught in the manner we have stated, resulting in the injury to his arm. Kenealy testified that, when his dinner was given to him, he told the boy, as he had done before, to stay away from the grounds, at the same time giving his daughter the dinner pail and telling her to go home; that she and the boy started away together and got out of sight, and Kenealy did not see the boy any more until about the time the accident happened. He said that, when he started the children homeward, he noticed the engine had stopped, and went into the engine room to start it; that, as he did so, respondent came running in and asked to help, was threatened against remaining on the premises, told to go out, and did so. Kenealy then started the engine, and immediately an exclamation from the respondent attracted his attention, and he saw that respondent was caught on the shaft. The movement of the machinery was stopped at once. Respondent admitted that he had been warned previously not to come about the engine house. The assignments of negligence are: First, that the defendant kept in the pumping house attractive and dangerous machinery, engines, and appliances calculated to excite the curiosity of children, and to attract them to go near and use it, and defendant knew children were in danger of being attracted by the machinery, unless it was carefully guarded, and on the day of the injury it was left unguarded. Second, that, knowing respondent's immature age, the defendant, its agents and servants, negligently employed, directed, and invited him to carry to Kenealy his midday meal, and carelessly induced and invited respondent to enter the premises wherein were the dangerous engine and machinery. Third, that, for a long time prior to the day of the injury, respondent had been going on the premises by the direction and invitation of defendant and its servants, and by their direction and invitation had assisted them in the discharge of their master's business; that on the day of the injury he was carelessly directed by the servant of the defendant, in charge of the pumping house and engine, to watch the engine which was then in operation, and notify said servant if it stopped; that he did watch the engine and notify the servant when it stopped, and thereupon said servant negligently requested, invited, and permitted the plaintiff to enter the engine house and remain in a narrow passway between the machinery and the walls, and, while the plaintiff was there, the defendant's servant carelessly started said engine and machinery and carelessly directed and permitted defendant to assist in starting same; that, when said machinery started, plaintiff was in an eminently perilous situation, if the machinery moved, as the defendant's servant knew, or could have known by ordinary care; and that with such knowledge, or means of knowledge, defendant's servant carelessly and negligently started the engine, and plaintiff was hurt. Fourth, that the servants of the defendant, in charge of the pumping house machinery, were careless and negligent men, as the defendant knew, or by ordinary care could have known, and defendant was guilty of negligence in having such men in its employ.

We may dismiss, without consideration, the averment of carelessness in directing respondent to take Kenealy's dinner to him, for, whatever negligence could be predicated of this simple direction, it was in no sense the proximate cause of the accident. We may likewise dismiss the allegation of negligence on the part of the defendant in having incompetent servants in charge of the pumping machinery, because it was supported by no proof. Kenealy was the only servant in charge, and nothing to impugn his competency was shown. Negligence, in those two particulars, was not carried into the instructions.

In two of the instructions given for the respondent, the...