Kame v. St. Louis & S. F. R. Co.

Decision Date06 December 1913
Citation254 Mo. 175,162 S.W. 240
PartiesKAME v. ST. LOUIS & S. F. R. CO.
CourtMissouri Supreme Court

Appeal from Circuit Court, Jasper County; David E. Blair, Judge.

Action by Robert Kame, a minor, by H. B. Kame, his next friend, against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

The cases cited by respondent and referred to in the opinion are as follows: Wilkins v. Railroad, 101 Mo. 93, 13 S. W. 893; Schmitz v. Railroad, 119 Mo. 256, 24 S. W. 472, 23 L. R. A. 250; San Antonio R. R. v. Green, 20 Tex. Civ. App. 5, 49 S. W. 670; Butler v. Railroad, 155 Mo. App. 287, 136 S. W. 729; Campbell v. Railroad, 175 Mo. loc. cit. 174, 175, 75 S. W. 86; Hall v. Railroad, 219 Mo. loc. cit. 589, 590, 118 S. W. 56; McGee v. Railroad, 214 Mo. 530, 114 S. W. 33; Payne v. Railroad, 129 Mo. loc. cit. 417, 31 S. W. 885; Herdt v. Koenig, 137 Mo. App. loc. cit. 600, 119 S. W. 56; Vaughn v. Lemp Brew. Co., 152 Mo. App. 48, 132 S. W. 293; Burger v. Railroad, 112 Mo. 238, 20 S. W. 439, 34 Am. St. Rep. 379; Beach on Cont. Neg. § 117; Plumley v. Birge, 124 Mass. 57, 26 Am. Rep. 645; Anderson v. Railroad, 161 Mo. 411, 61 S. W. 874; Walker v. Railroad, 193 Mo. loc. cit. 453, 92 S. W. 83.

W. F. Evans, of St. Louis, and Mann, Johnson & Todd, of Springfield, for appellant. Fielding P. Sizer, of Monett, and Thomas & Hackney, of Carthage, for respondent.

LAMM, J.

Robert Kame, a minor, sues by prochein ami in the Jasper circuit court counting on negligence. He recovers $10,000 damages, and defendant appeals.

Below, in its motion for a new trial, defendant complained of an excessive verdict; but the grave and permanent injuries to the boy, clouding his hopes and disabling him from the innocent gaiety of youth as well as the sober duties of mature life, are of such sort that it is to the credit of defendant's counsel that they assign no error on that score; hence that element drops out of the case above.

Error is assigned on instructions alone, and herein of two demurrers to the evidence, one at the close of plaintiff's (and the other of the whole) case.

The case is this: It was alleged in the petition, and denied generally in the answer, but conclusively shown at the trial, as follows: Robert was a minor, nearly 15 years of age, and resided with his father. At midnight in September, 1909, a fire broke out in defendant's yards at Monett, in some bad-order cars hard by its freight depot and cars laden with merchandise. Defendant at once raised a great clamor of distress by engine fire alarm signals in said yards, calling for salvage aid from the inhabitants of Monett, a considerable town. Plaintiff and his father were awakened from their slumbers by that alarm and, with many others in like fix, hurried in straggling procession to said fire in response to said fire alarm invitation. Their way there was blocked by a string of dead freight cars standing on a track, say, 50 or 75 feet away. This crowd swarmed through, over, and on this string of cars in answering said signals for help, as well as calls for help by defendant's servants engaged in salvage. Plaintiff, bent on said mission, saw people on and passing hurriedly through said string of cars on a like mission, to which cars no engine was then attached. Plaintiff following the crowd through, at that instant of time, without warning from bell, whistle, or otherwise to him, suddenly an engine and cars were backed by defendant against said dead cars, ramming them with such violence that persons were knocked down, and, among them, plaintiff, whose leg was thereby cut off by car wheels. As said, there is no dispute in the foregoing particulars. Also, as we view it, the evidence was all one way in proving the following allegations of the petition, the gist of the matter, viz.: "Plaintiff further states that he was at the time in the exercise of ordinary care, considering his age and the circumstances surrounding him at the time, and that the immediate cause of plaintiff's said injuries was the carelessness and negligence of the agents and servants of the defendant in managing and controlling said engine and trains of cars as aforesaid, and in failing to use ordinary care to protect the plaintiff, and the great crowds of people thus assembled at the invitation and urgent request of the defendant to render all assistance possible to save the property of the defendant, which presence of the plaintiff, together with said concourse of people, and that plaintiff and others were crossing between and over said standing cars, was known to the defendant and the agents and servants of the defendant, or could have been known by the exercise of ordinary care by the agents and servants of the defendant in time to have avoided injury to the plaintiff."

The siding track on which said dead cars stood runs east and west, and is called track 1....

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