Reilly v. Hannibal & St. J. R. Co.

• Decision Date: 05 March 1888
• Citation: 7 S.W. 407,94 Mo. 600
• Parties: REILLY et al. v. HANNIBAL & ST. J. R. CO.
• Court: Missouri Supreme Court

7 S.W. 407

94 Mo. 600

REILLY et al. v. HANNIBAL & ST. J. R. CO.

Supreme Court of Missouri.

March 5, 1888.

1. MASTER AND SERVANT — NEGLIGENCE — SCOPE OF EMPLOYMENT — KNOWLEDGE AT CONSENT.

In an action brought by the parents against a railroad company for killing a child where the defense was that the engine which killed the child was not being used in the defendant's business or with its knowledge or consent, evidence that it was being run by certain of defendant's men, to take them home to supper; that it had been so used for upwards of three months in an open and notorious manner, with the knowledge of the yard-master; that the superintendent had seen it so used, and was in a position to know all about it, — is sufficient to justify the jury in finding that the engine was being used with the knowledge and consent of the defendant

2. RAILROAD COMPANIES — NEGLIGENCE — FAILURE TO SEE CHILD ON TRACKS.

When an engine is being run in a city, on a straight, level street, in broad day, at a speed of from 8 to 20 miles per hour, and the men on the engine do not see a child on the track until within about 30 feet, held, that the engine was run in a negligent manner by those managing it.

3. NEGLIGENCE — INFANTS — CARE OF BY PARENT.

Where the mother set a cup of bread and milk before a child 16 months old, and went into an adjoining room to strain milk, and the child wandered out of the house upon a railroad track, and was killed, it is for the jury to say whether she was guilty of contributory negligence.

4. WITNESS — COMPETENCY — CO-PLAINTIFF.

In Missouri, in an action to recover damages for killing of a child, it is not error to allow the mother, who is one of the co-plaintiffs, to testify in their behalf.

5. TRIAL — INSTRUCTIONS GIVEN ON REQUEST — ESTOPPEL TO IMPEACH.

Where the defendant asked for instructions, which were given in substance in the charge of the court, he cannot be heard to say that the instructions given were erroneous.

Appeal from circuit court, Monroe county; THEODORE BRACE, Judge.

Prosser Ray, Frank Walker, and Strong & Mosman, for appellant. R. E. Anderson, for respondents.

NORTON, C. J.

This suit was instituted in the Hannibal court of common pleas, by plaintiffs, to recover damages for the death of their infant son, aged 16 months, alleged to have been occasioned by the negligence of defendant in running a switch-engine over Collier street, in the city of Hannibal. The venue of the cause was changed to Monroe county, where, upon a trial, plaintiffs had judgment for $5,000, from which the defendant has appealed, and assigns as the chief ground of error the action of the court in refusing to sustain a demurrer to the evidence, and in giving and refusing instructions. The evidence tends to show the following facts: That the track of defendant's road is laid on Collier street, in the city of Hannibal, which runs east and west, and is intersected by Fourth, Fifth, Sixth, and Seventh streets, which run north and south; that plaintiffs lived on a lot south of and abutting on said Collier street; that their house stood several feet back from the street, and was inclosed with a fence, in which there was a gate opening out on the street; that between this gate and the railroad track there was a space of several feet. It further appears that plaintiffs, at the time of the accident, had five children, aged, respectively, 12, 10, 5, and 3½ years, — the youngest son, Willie, who was killed, being 16 months old; that plaintiffs had several cows, and sold milk; that the accident occurred about 6 o'clock in the evening; that plaintiffs had milked their cows, and the father was driving them to the pasture, and the two oldest children had been sent with milk to their customers; that the mother, after giving Willie, the youngest child, in the front room of the house, a cup of bread and milk, left him eating a piece of bread, and went into an adjoining room to strain milk, and in about five minutes was informed that the child had been run over and killed by one of defendant's engines. She testified that she did not know whether the door of the house and the gate were open or not; that she did not miss the child till informed of his death. It further appears that the child, after being thus left, wandered out of the house onto the street and defendant's track, and sat down on the end of a tie on the south side of the track, eating a piece of bread; that while sitting there he was beheaded by one of defendant's locomotives or switch-engines running at a speed variously estimated by the witnesses to be from 8 to 20 miles an hour. The evidence also tended to show that when the engine had approached within 90 or 100 yards of the place where the child was, two men in a wagon on the south side of Collier street, seeing the dangerous situation of the child, warned those on the engine of the danger, one of them testifying that as the engine was passing within 16 feet of them, he threw up his hands, and hallooed as loud as he could "that they would run over the child; there is a child on the track; look out for the child;" "that the men on the engine did not pay any attention;" that he hallooed loud enough to be heard 30 yards; that the engine was running 15 miles an hour; that he could not see the spokes of the driving wheels, — that they looked solid; that the wagon he was on, as well as the engine, made considerable noise; that neither bell was rung or whistle sounded. The evidence is clear that there was nothing to prevent those in charge of the engine from seeing the child had they looked. It is also shown that switch-engine No. 13, which beheaded the son of plaintiff, was, at the time the accident occurred being run for the purpose of carrying Mr. Ham, in the employ of defendant as foreman of the round-house and assistant master mechanic, out to his supper on Lyon street, between Ninth and Tenth streets, where he lived. The evidence further shows that for six weeks or more previous to the accident this switch-engine had been run at least twice a day out on Collier street to Eleventh street, — a little over one mile, — for the purpose of carrying Ham and other employes of defendant back and forth to their meals, — down in the morning to the shops, back at noon to dinner, and back again to supper, and then down to the shops; that it was run under the management of Ham; that Ham was on the engine, with Wilson as engineer, and Graham as fireman; that Wilson's eyes were very poor; that the week before he had been in St. Louis under care of Dr. Green, an oculist; that he had been laid off almost two years on account of his eyes. The evidence tended to show that Ham, under his employment, had no control over the movement of switch-engines after they left the round-house; that the exclusive right to control the movements of all engines after they left the round-house was in the yard-master of the switch-engines while in the yards, and in the train dispatcher and superintendent after they leave the yards.

Mr. Lessner, the night yard-master, testified that he saw switch-engine 13 go out, and Wilson as engineer, and Graham, fireman, and several others, were in it; that the engine was used to carry Ham to his supper; that he never reported to the yard-master, Moore, detentions caused by the use of the engine to carry Ham to his meals; that he thought Moore...