Hyder v. Chicago, M. & St. P. Ry. Co.

• Decision Date: 25 May 1925
• Docket Number: 15199.
• Parties: HYDER v. CHICAGO, M. & ST. P. RY. CO.
• Court: Missouri Court of Appeals

275 S.W. 977

HYDER v. CHICAGO, M. & ST. P. RY. CO.

15199.

Kansas City Court of Appeals. Missouri.

May 25, 1925.

Certiorari Denied July 17, 1925.

Appeal from Circuit Court, Caldwell County; Arch B. Davis, Judge.

Action by Carl Ryder, by his next friend, Paul Hyder, against the Chicago, Milwaukee & St. Paul Railway, Company and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Fred S. Hudson, of Kansas City, for appellants.

Pross T. Cross, of Lathrop, and Davis & Ashby, of Chillicothe, for respondent.

BLAND, J.

This is a suit for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $5,000, and defendant railway company has appealed.

Plaintiff was injured while in a buggy which was struck by one of defendant railway company's trains on the 16th day of October, 1922, at a highway crossing of said company's tracks near Lawson, Mo. The train was running at the rate of 30 miles' per hour. Plaintiff, together with several other small boys, the oldest of whom was 11 years of age, was coming home from school. When they were nearing said defendant's tracks a train passed, and, thinking that there would not be another train immediately following this one in the same direction, they approached to within about 12 feet of the track, when for the first time they discovered the train, which struck the buggy, approaching around a curve from the south, about 700 feet distant. The buggy was being driven toward the west. At this time, upon seeing the train, the driver, Alva Hyder, jumped from the buggy and went to the horse's head and took hold of the bit, holding it and talking to the horse, which, the evidence shows, was a gentle animal, and was not frightened by trains passing in the usual manner. The engine continued to come forward, the engineer having his head out of the window on the right-hand side of the cab, the horse standing still. When the engine arrived at a point about 84 feet from the horse, the engineer gave three or four short sharp blasts of the whistle, known as the stock alarm, which caused the horse to bolt across the track. The engineer drew his head within the cab when he gave the alarm, and the train continued to proceed forward, striking the buggy, which resulted in plaintiff's being severely injured.

The engineer testified that when he came around the curve he saw a person in the buggy and some one in front of it at the horse, but did not know what the one in front was doing there, but that the horse was moving, and he expected it to proceed across the track unless some alarm was given; that it was customary for him to give the stock alarm when any animal or person was close to the track. He admitted that the stock alarm was for the purpose of frightening animals away from the track. However, there was testimony by a witness who made an experimental test that while he was riding with his head out of the window of a passenger coach of one of said defendant's trains approaching the crossing in question from the south he distinctly saw one of the Ryder boys standing about 10 or 12 or 15 feet from the track when the witness was 480 feet from the crossing. The engineer testified that his bell was ringing all the time, and had been since the train left Lawson, which was some miles south; that he sounded the crossing whistle 80 rods from the crossing, and that he did not whistle again until he gave the alarm whistle we have mentioned; that he did not sound the whistle at intervals as he passed between the whistling post and the crossing. He further testified that, if he had seen the horse standing with the boy holding its head, he would have had no occasion to give the stock alarm.

The petition in part is founded upon the negligence of the engineer in sounding the stock alarm under the circumstances.

It is first contended that the petition fails to state a cause of action. This is based upon the contention that section 9943, R. S. 1919, requires the sounding of a whistle 80 rods from the crossing and at intervals until the train shall have crossed the crossing, and that the petition fails to state that the whistling was unusual and unnecessary in the operation of said defendant's train. The petition was not attacked by demurrer, and after verdict it is to be liberally construed, and, if it states any cause of action, even though defectively set forth, it is good. Becke v. Forsee (Mo. App.) 199 S. W. 734; Armstrong v. Railroad, 195 Mo. App. 83, 190 S. W. 944.

The petition pleads that, after the driver of the horse discovered the approach of the train, he stopped the horse and vehicle while the same were a safe distance from the track and out...