Livingston v. Wabash R. Co.

• Decision Date: 16 December 1902
• Citation: 71 S.W. 136,170 Mo. 452
• Parties: LIVINGSTON et al. v. WABASH R. CO.
• Court: Missouri Supreme Court

71 S.W. 136

170 Mo. 452

LIVINGSTON et al. v. WABASH R. CO.

Supreme Court of Missouri.

December 16, 1902.

RAILROADS—CHILD INJURED AT DEPOT—DUTY OF ENGINEER—LIABILITY OF COMPANY —INSTRUCTIONS—EVIDENCE.

1. If a child takes fright and runs across a depot platform in a manner to indicate to a person of ordinary prudence that it will run upon the track, and the engineer of a train entering the depot sees, or by the exercise of ordinary care can see, it in time to avoid an accident, but negligently fails to do so, the company is liable.

2. It is not sufficient for the engineer to merely use due care to avoid the accident after the child is actually on the track.

3. An instruction that "the mere seeing, or capacity of seeing, a person walking or running along at or near the center of a platform 15 to 18 feet wide, almost paralleling a railroad track, will not of itself demand in law of an engineer that he stop to inquire the intention of such person," while abstractly correct as applied to persons of discretion, has no application to a child 3½ years old.

4. An instruction that the law will not "hold a railroad company responsible for the sudden impulse of any spectator, who, from fright or panic, rushes suddenly and unexpectedly within two to four feet, and in front of a moving train," was not applicable to a case where a child ran 50 feet diagonally across a depot platform towards the track, its course indicating that it was aiming to reach a trunk platform on the other side of the track.

5. The fact that a child run over by a train was at the depot unattended is a circumstance which may be considered in connection with the other evidence in determining whether its mother permitted it to be there unattended, though there was no express evidence that she permitted it to be there.

6. A locomotive engineer has no right to assume that a child 3½ years old, running across a depot platform toward the track, will stop before crossing it.

7. It was error for the court, on plaintiff's asking defendant's expert what was the proper thing for an engineer of a locomotive coming into a depot to do if he saw a child approaching the track as though going on it, to modify the question so as to make it ask whether, if an engineer should see a child running on a public platform, where there were a lot of people, he would naturally feel that it was going on the track, or that it would be taken care of, or would take care of itself; it appearing from the evidence that the child, which was 3½ years old, was actually running toward the track.

Sherwood and Robinson, JJ., dissenting.

In banc. Appeal from circuit court, Macon county; Andrew Ellison, Judge.

Action by Joseph Livingston and others against the Wabash Railroad Company. Judgment for defendant, and plaintiffs appeal. Reversed.

The following is the opinion of the court in division No. 1:

VALLIANT, J.

Plaintiff's child, 3½ years old, was run over and killed by a locomotive drawing a passenger train of defendant near its depot in the city of Macon in March, 1896, and this suit is to recover damages for the act, which, plaintiffs allege, was caused by the negligence of defendant's servant in charge of the locomotive. The petition alleges three acts of negligence, viz., running the train at a speed of more than six miles an hour, in violation of a city ordinance; failure to give signals; and failure to stop the train in time to save the life of the child, after its perilous condition was discovered, or could have been discovered by the exercise of ordinary care on the part of the engineer. Those acts were denied in the answer, which contained also a plea of contributory negligence on the part of the child, and on the part of the plaintiffs in permitting the child to wander unattended upon or near the railroad track. The trial in the circuit court resulted in a verdict and judgment for the defendant, and the plaintiffs appeal.

It was shown at the trial that the defendant's railroad runs on a line north and south through the city of Macon; that just south of its depot it crosses the Hannibal & St. Joseph Railroad on an elevated tressel or bridge. From the bridge northward to and beyond the point of the accident the track is straight, and the view unobstructed. There is a platform 16 feet wide along the east side of the track from the bridge to and beyond the depot and beyond the point of the accident. The depot abuts this platform on the east side. Sixty-one feet north of the depot, on the same side, also abutting the platform, is a baggage room, opposite to which, across the track, is a trunk platform 47 feet long. From the bridge to the north end of the depot the distance is 199 feet. From the north end of the depot to the south end of the baggage room it is 61 feet, so that from the bridge to the south end of the trunk platform opposite the baggage room, which is the point of the accident, the distance is 260 feet. On the west side of the railroad track, 35 feet from the bridge, is a water tank. From the water tank to the point of the accident it is 225 feet. There was an ordinance of the city forbidding such trains to run faster than 6 miles an hour within the limits. This train crossed the bridge at the rate of 20 miles an hour, and, slowing down, passed the depot at 10 miles an hour, and, still slowing down, stopped with the baggage car about opposite the baggage room, which was the usual place of stopping. At the instant of striking the child the locomotive was not moving exceeding 6 miles an hour; possibly not faster than 3 miles. As the train came over the bridge, the little girl, with her brother, who was five years old, was at the fence within a few feet of the north end of the depot. At that time three young men were standing on the west edge of the platform opposite the south end of the depot, apparently dangerously near the railroad track; and when the locomotive was between the bridge and the tank, the engineer, seeing the young men, sounded the danger signal of several sharp blasts of the whistle, and applied the emergency brake. The young men moved readily away from the position of danger, and as the engine passed them the engineer, looking at them, called out to them, saying, "It's a wonder you would not stand on the track and get killed!" When this danger signal was sounded the little girl broke away from her brother, and ran in a northwesterly direction diagonally across the platform towards the trunk platform, and ran upon the track at a point about the south end of the trunk platform, where she was struck by the engine, and was carried or rolled along, no one knew how, to near the north end of the trunk platform, where she fell, and the wheels of the engine passed over her, killing her. The witnesses differed in their estimates of the distance in front of the engine at which the child got upon the track, varying from 30 feet to 3 or 4 feet. The engineer did not see her at all, and did not know that the accident had occurred until his engine had come to a stand, and he had come down from the cab to oil the machine. From the point at the fence where the child was when it started to run to the point where it started to cross the track is estimated at 50 feet, or 18 steps. Several witnesses saw the child as she was running along the platform, and from the course she was pursuing apprehended that she was running into peril. One witness turned his back to avoid seeing her struck by the locomotive. The child wore a red dress. William Ross, the engineer in charge of this locomotive,—a witness for defendant,—testified: That when he saw the three young men too near the track he was running 20 miles an hour. He sounded the danger signal, and applied the emergency brake. The young men moved away readily; and that, after he passed them, he released the emergency brake, and the engine rolled on past the depot at the rate of 10 miles an hour. That, if he had been running only 6 miles an hour, he could have stopped within 35 to 50 feet by using the emergency brake, or without that brake he could have stopped in 30 feet by reversing the engine. He testified that after passing the young men he looked ahead, and saw a large crowd on the platform in front of the depot; that he did not see the child. "Q. Were you in a position to see to the north as well as one who is within three or four feet east of your track? A. I don't know whether I was or not. I was sitting higher than they. My head was about seven feet above the level of the sidewalk; that is, above the platform. I expect I could see north as well as those opposite to the window where I sat. I think I was in position at least to see as well as they could. Q. What was your speed when you struck the child first, as has since been explained to you? A. At that time when I struck the child the engine could not have been going over 6 miles an hour. As I passed the north end of the depot the train was running 9 or 10 miles an hour. I can stop quicker when running 6 miles an hour than when running 10 miles an hour. The faster a train is going, the longer it takes to stop. The child was found at the north end of that trunk platform. [That platform is 47 feet long.] That platform comes up about level with the rails. Q. If you had let the emergency stop stay on, in what distance should your train have come to a standstill? A. It would have stopped in about 270 feet. Q. As it was, how far did your train run? A. I don't know. Beyond the platform anyhow. I looked at the men as I passed them. That child could not have been seen from where those men were under any circumstances. Q. If you had looked, and seen the child, would you not have let your emergency stop remain on? A. I would if I had seen the child; yes, sir. I would have done anything I could to stop. Q. Now, would not your train have come to a stop, if you had left the emergency stop on, before you struck the child? A. Most assuredly, if it came on where the men...