Klusman v. Harper

• Decision Date: 06 June 1927
• Docket Number: No. 15936.,15936.
• Citation: 298 S.W. 121
• Parties: KLUSMARS et ux. v. HARPER et al.
• Court: Missouri Court of Appeals

298 S.W. 121

KLUSMARS et ux. v. HARPER et al.

No. 15936.

Kansas City Court of Appeals, Missouri.

June 6, 1927.

Rehearing Denied June 27, 1927.

Certiorari Denied by Supreme Court September 27, 1927.

Appeal from Circuit Court, Buchanan County; L. A. Vories, Judge.

Action by Henry Kinsman and wife against F. H. Harper and another, doing business under the name of Harper Bros. Disposal Company. Judgment for plaintiffs, and defendants appeal. Affirmed.

Shultz & Owen, of St. Joseph, for appellants.

Otto A. Imbersteg, W. B. Raez, and IV. B. Norris, all of St. Joseph, for respondents.

WILLIABIS, C.

This is a suit brought in the circuit court of Buchanan county to recover for the death of plaintiff's six-year old son who was killed on the 13th day of May, 1925.

It is alleged, and the jury found, that the death of the boy was the result of being run over by a train of wagons pulled by a tractor upon a public street in the city of St. Joseph.

It seems that the defendants were engaged in the collection of garbage at the time the child was run over, and were doing business as partners under the name of Harper Bros. Disposal Company. Steel wagons or trucks were used in collecting the garbage. When the wagons were loaded they would be collected by defendant and would form a train by hooking the tongue of one wagon to the rear of another. A tractor was hitched in front and the train connected to the tractor, and in such a way the wagons were moved.

At the time the child was killed the train comprised six wagons which extended almost one-half block, and was traveling at the rate of 18 to 20 miles an hour. The wagons were about 10 feet long and each weighed, when loaded, about 4,500 pounds. Garbage had been hauled in this manner for about a year before the boy was killed.

The public school was located on Fourth street, not far from where the casualty occured. It seems as if this wagon train traveled along Fourth street about the time the children were going to school. The children had been in the habit of running out and getting on and off this train of wagons, and it seems that the children had been playing and riding on these wagons for at least a year before the boy was killed.

A witness testified that he had seen the same driver driving the tractor "around a year." A witness, John Csonke, testified he saw a number of children playing around the wagons shortly before this child was killed, and that the wagon train was traveling about 18 or 20 miles an hour; that there were three or four children on the side and they were starting to climb upon the tongue of the wagons. Witness testified he saw the driver get up in his seat and turn around and he said something, but he did not know whether he was "hollering at the boys or not"; that the driver did not stop to put the boys off after he hollered and before the child was killed. Another witness testified that the driver told the children to get off and then turned around and went on. The driver of the truck did not testify and the defendant stood upon a general demurrer. The case was submitted to the jury; the jury returned a verdict for $7,166.67. After an unsuccessful motion for a new trial defendant has appealed.

In the original brief filed by appellant, the doctrine of the attractive nuisance is very ably discussed. The respondent, however, concedes in his brief that he cannot recover under this doctrine, and places his case squarely upon the humanitarian doctrine, and upon that doctrine he elects to stand or fall.

It is first contended by appellant that the demurrer offered at the close of plaintiff's case should have been sustained. The appellant in his reply brief cites many cases and ably discusses them. However, the respondent concedes the propositions of law laid down in the cases cited by appellant, for example, Giles v. Railroad Co., 169 Mo. App. loc. cit. 27, 154 S. W. 852, Hall v. Railroad, 219 Mo. loc. cit. 586, 587, 118 S. W. 56, Youmans v. Railway Company, 143 Mo. App. loc. cit. 401, 127 S. W. 595, and Stewart v. Railway Co., 308 Mo. 383, 272 S. W. 694, but contends that the case of Dalton v. M., K. & T. B,., 276 Mo. 663, 208 S. W. 828, is controlling.

The facts in the Dalton Case as set out the opinion of Judge Graves are:

"In the switchyards in the northern part of Hannibal, Mo., is a track running near the bluff, which track is the west track of those yards. To the west of this track is a public road, and across this road, close into the bluff, is a store and some residences. These switchyards are a quarter of a mile or more in length, and lie between the public road above mentioned and the Mississippi river. Plaintiff and another boy were upon a car then standing upon this west switchyard track (near the north end thereof), and he was knocked therefrom by the force of a coupling or running together of other cars with the bunch of cars where plaintiff was located. In his fall he was thrown under the wheel of the car and both arms cut off. In an attempt to obviate the question of the plaintiff being a trespasser (pure and simple), the petition alleges at great length sundry alleged usages, as follows: That said switchyards were uninclosed; that the inhabitants along this public road obtained their water from a spring near the river and from the river; that in the yards for some years there had been a sand digger, which was attractive to children when it was in operation; that for a number of years there had been a constant and continuous use of these yards by the citizens, including children; that there was (opposite these dwellings and store) a swimming pool in the river which was much used by boys at the season of this accident, and these boys daily crossed these yards; that for years there had been a continuous use of these yards by the public going from north to south through them; that for years these yards had beer, continuously used by children as a playground; that for years children, and especially boys, were continuously in, around, and upon the cars standing in this switchyard; that defendants had knowledge of all these conditions."

Dalton v. M., & T. R., supra, the deceased was in the private switchyards of defendant, and this fact alone would make him a trespasser pure and simple. In the case at bar the deceased was riding upon the tongue of the wagon. Standing alone, this would make him a trespasser pure and simple.

In the Dalton Case there was proof of the continuous use of the switchyard by boys and they played in, upon, and around the cars standing in the switchyard. In the case at bar the evidence shows that for a year the children had been getting on and off of the train of tanks or wagons. Children would run and get in between the wagons and ride on the tongue. This fact was known to the driver of the tractor which hauled the wagons. That very morning he had stopped and put children off. There is some evidence that he hollered at other children shortly before the deceased was run over. In the Dalton Case the court held that the continuous user would impute notice and would require the railroad to be upon the lookout.

The question then arises whether or not the boy was in a position of imminent peril. A child six years old riding between wagons joined together, each wagon weighing about 4,500 pounds and running from 18 to 20 miles an hour, would most certainly be in imminent peril. The speed at which the wagon was going was probably faster than the child could run, and if he voluntarily got off or accidently slipped off of the tongue of the wagon it would be almost impossible for him to pass from between the wagons in time to escape injury. Was the fact that this boy was in imminent peril communicated to the driver in time to have avoided injury by the exercise of ordinary care?

One witness testified he saw the driver get up in his seat and look back, and at that time witness saw boys getting on the wagon and that the wagon was going about 20...