Lange v. Missouri Pac. Ry. Co.

• Decision Date: 08 January 1906
• Parties: LANGE v. MISSOURI PAC. RY. CO.
• Court: Missouri Court of Appeals

91 S.W. 989

115 Mo. App. 582

LANGE v. MISSOURI PAC. RY. CO.

Kansas City Court of Appeals. Missouri.

January 8, 1906.

1. RAILROADS — INJURY TO PERSON ON TRACK — NEGLIGENCE.

Evidence, in an action against a railway company for injuries received by being struck by a car cut loose from a train and allowed to pass over a side track, examined and held that the question of negligence arising from the failure of the brakeman on the car to stop it in time to prevent the injury was for the jury.

2. SAME — DUTY OF EMPLOYÉS.

It is the duty of a brakeman on a car cut loose from a train and allowed to run on a side track to have the brake under control, so as to be able to stop the car moving on a level grade at the rate of four miles an hour in a few feet, thereby avoiding injury to a person on the track.

3. SAME — NEGLIGENCE.

Where the servants of a railway company knew that there were a number of children around and between the tracks at a station, it was negligence to cut a car loose from a train and allow it to pass over a side track, though the children were trespassers.

4. SAME — CONTRIBUTORY NEGLIGENCE.

Where, in an action against a railway company for injuries received by being struck by a car cut loose from a train and allowed to pass over a side track, the evidence showed that the trainmen knew that children were between the tracks, that steam escaped from the engine causing alarm among the children and causing the child injured to step on the side track, and that the engineer could have controlled the escaping steam, the child was not guilty of contributory negligence precluding a recovery.

5. SAME — INSTRUCTIONS.

Where, in an action against a railway company for injuries received by being struck by a car cut loose from a train and allowed to pass over a side track the evidence showed that the child injured was nine years old, inexperienced, and unaware of the danger, and that she was alarmed by the acts of the engineer in blowing off steam causing her to step on to the side track, an instruction that the jury in passing on her negligence should take into consideration that she was by reason of her youth and inexperience unaware of the danger to which she was exposed was proper.

6. APPEAL — DEFECT IN INSTRUCTIONS — WAIVER.

A defect in an instruction not pointed out by appellant in his argument and brief is waived.

7. RAILROADS — INJURY TO PERSON ON TRACK — INSTRUCTIONS.

An instruction, in an action for injuries received by a child who was struck by a car cut loose from a train and allowed to pass over a side track, authorizing the jury in considering the question of the child's negligence to consider that by reason of her youth and inexperience she was not aware of the danger, was not in conflict with an instruction that, though she was guilty of negligence, plaintiff was entitled to recover on finding that the brakeman on the car saw her on the track in time to have averted the accident, for, if the company was negligent and the child not, the company was liable, and, if she was negligent and defendant could have avoided the accident, it was also liable.

8. SAME.

An instruction, in an action against a railway company for injuries received by a child by being struck by a car cut loose from a train and allowed to pass on a side track, that the company was under no obligation to the child except to use reasonable care not to injure her after her position of danger was discovered, was improper, because it left out of the case the question of negligence in using the flying switch and the act of the engineer in letting off steam thereby alarming the child and causing her to step onto the side track.

9. SAME.

Where, in an action against a railway company for injuries received by a child struck by a car cut loose from a train and allowed to pass on a side track, there was evidence that persons who saw the child's peril warned her, and that she did not either hear or understand the warning, an instruction that, if she did not heed the warning, she was guilty of contributory negligence, was properly modified by adding, if the warning was heard by her.

10. TRIAL — INSTRUCTIONS — DEFINITION OF TERMS.

Where, in an action against a railway company for injuries received by a child struck by a car cut loose from a train and allowed to pass on a side track, both sides conceded that the car so operated was a flying switch, it was not error to fail to define in the instructions a flying switch.

11. DAMAGES — PERSONAL INJURY TO CHILD — EXCESSIVE DAMAGES.

In an action by a father for injuries to his infant child, the evidence showed that the medical and nursing bills amounted to over $500, and the proof of loss of services was over $800. Held, that a verdict for $1,372, on plaintiff remitting $31 of the amount thereof to correspond with the proof, would not be set aside as excessive.

Appeal from Circuit Court, La Fayette County; Samuel Davis, Judge.

Action by Fredrick Lange against the Missouri Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Martin L. Clardy & John Cashman, for appellant. Alexander Graves and Charles Lyons, for respondent.

BROADDUS, P. J.

The plaintiff sues for damages, the alleged result of the negligence of the defendant company for injury inflicted upon his minor daughter, Freda Lange.

The place of injury was at Emma, a station on defendant's railroad near the boundary line between La Fayette and Saline counties There is no depot building at said station, but there is a platform made of cinders for the use of passengers arriving and departing on defendant's trains. The railroad runs east and west. A public road crosses defendant's tracks a short distance east of the said platform. The distance between the main and switch tracks is about 26 feet. It was shown that Freda, a little girl nine years old, on her way home from school in company with 15 or 20 other school children, stopped at the station to witness the departure of their teacher west on a passenger train then about due. When the passenger train arrived, the freight engine with cars was standing on the east end of the switch track. After the passenger train had left, the engine of the freight train came upon the main track and stopped at the platform, after having previously switched an empty freight car upon the side track, which car was moving west upon almost a level grade at the rate of from three to five miles an hour with a brakeman on top standing at the brake. The plaintiff's daughter at this time, with other children, was on the platform and between the main track and side track, and near the engine. The engineer blew off steam, which alarmed the girl, who, with two other little girls, stepped off onto the side track a short distance ahead of the moving car, and she was run over by it. She was severely injured, and it became necessary in order to save her life to amputate one of her legs. The other two children that were on the side track at the time were ahead of plaintiff's daughter and escaped without injury. The brakeman on the car had his face turned west, and plaintiff's evidence tended to show that he could not avoid seeing the children on the track ahead of his car and their perilous situation in time to have avoided striking Freda, unless he had closed his eyes. The car was moving slowly, and the evidence fully justifies the belief that at its rate of speed, under proper control, it could have been stopped in time to have avoided the injury by the exercise of the necessary diligence. The car in question was shunted on the side track by what is known as the flying...