Rushenberg v. St. Louis, I. M. & S. Ry. Co.

• Decision Date: 14 March 1892
• Court: Missouri Supreme Court
• Parties: RUSHENBERG et al. v. ST. LOUIS, I. M. & S. RY. CO.

19 S.W. 216

109 Mo. 112

RUSHENBERG et al. v. ST. LOUIS, I. M. & S. RY. CO.

Supreme Court of Missouri, Division No. 1.

March 14, 1892.

NEGLIGENCE — INJURIES TO CHILDREN — PLEADING.

In an action for personal injuries resulting in the death of a child eight years old the petition alleged that defendant, a railroad company, kept long trains of cars standing on its tracks for the purpose of having them loaded and unloaded with ice; that pieces of ice fell under and around the cars, which attracted children there; and that, while decedent was engaged about and under the cars in gathering ice, defendant negligently bumped a train against the cars which were standing on its track, causing the injury complained of. Held, that the petition was defective, in that it did not allege that defendant loaded or unloaded the cars so as to make it liable for any attraction that pieces of falling ice furnished decedent.

Appeal from St. Louis circuit court.

Action by John Rushenberg and another against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment sustaining a demurrer to the petition, plaintiffs appeal. Affirmed.

The other facts fully appear in the following statement by SHERWOOD, C. J.:

Action for $5,000 damages, brought by father and mother as plaintiffs against the defendant company for causing the death of their minor son on the 23d day of June, 1888, who was crushed beneath a car-wheel while standing under one of a long train of freight-cars on the defendant's tracks, which extend north and south on First street at its intersection with Cherokee street. The cars, it seems, were loaded with ice, and while being unloaded pieces of ice fell under and around the cars, whereby children were attracted there, and were accustomed to be attracted there by such ice, gathering the same; that while said minor was gathering ice, with other children of tender years, about and under said cars, thus standing on the tracks, the defendant carelessly and negligently bumped a long train of cars against the cars standing on the said tracks, so that said minor was caught under the wheel of the standing cars, receiving fatal injuries. Stated at large, the allegations of the amended petition, omitting formal parts, were the following: That the defendant now, and at the times hereinafter set forth, owned and operated, or had under its immediate charge and control, a certain railway and tracks extending north and south along and upon First street, at its intersection with Cherokee street, in said city, and at said times kept long trains of cars standing on, and run its cars and locomotives back and forth over, the said track. "And plaintiffs state further that on or about the 23d day of June, 1888, and for a long time prior thereto, defendant company, by and through its employes, agents, and vice-principals, kept long trains of cars standing on said tracks for the purpose of having them loaded with and unloaded of ice; that by the manner in which the said cars were loaded and unloaded pieces of the ice fell under and around said cars, and by reason thereof children of the neighborhood, including said Rushenberg, deceased, then about eight years of age, were attracted there, and induced to congregate under and around the same for the purpose of gathering said pieces of ice; that the said cars were machines or agencies dangerous in their very nature and character, and that the said pieces of ice offered an attraction to children to come there for the purpose of gathering the same, and their location under and around said cars made it a place dangerous for children to be near; that by reason of said attraction said place became resorted to by the public, and children of tender years, including the said Rushenberg, deceased, who were accustomed to congregate around and under the said cars; and that all these facts were known, or by the exercise of reasonable care might have been known, to defendant company, but that, notwithstanding the premises, defendant, in neglect of its duty, took no precaution to prevent accidents of the character hereinafter set forth, and in consequence thereof the said place, being then and there, in neglect of defendant's duty, left unguarded, and inviting to children, the said Rushenberg, deceased, without fault or neglect on the part of his parents, was gathering ice with other children of tender years about and under said cars; that defendant, acting by and through its agents and employes, knowing or having reason to believe that children, and said Rushenberg, deceased, were under or around one of the said cars, caused a long train of cars, carelessly and negligently, to be bumped against the cars standing on said tracks, so that the said Rushenberg, deceased, was caught under the wheels thereof, and one whole car and half of another passed over his body, inflicting injuries from which he died in a short time thereafter. Wherefore plaintiffs pray for judgment against the defendant for the sum of five thousand dollars, as is by statute in such cases provided, together with the costs of this suit." The defendant demurred to the petition on the ground that it did not state facts, etc. The trial court held the petition insufficient in law, and, the plaintiffs declining to plead further, gave judgment for defendant; hence this appeal.

Virgil Rule, for appellants.

(1) A railway company offering an attraction to children to play about its dangerous machines or agencies, exposed in a locality where it is accessible to them, will be liable for injuries resulting therefrom. Fink v. Furnace Co., 10 Mo. App. 69-74, (cases reviewed;) Stout v. Railway Co., 2 Dill. 294, 17 Wall. 657; Ostertag v. Railroad Co., 64 Mo. 421; Lynch v. Nurdin, 1 Q. B. 29, (leading case;) Crafton v. Railroad Co., 55 Mo. 580; Morrow v. Railroad Co., 29 Mo. App. 437; Brown v. Railroad Co., 27 Mo. App. 398; Koons v. Railroad Co., 65 Mo. 592; Nagel v. Railroad Co., 75 Mo. 653-665; Schmidt v. Distilling Co., 90 Mo. 293, 294, 1 S. W. Rep. 865; Whit. Smith, Neg. 414, 416, (cases reviewed;) Beach, Contrib. Neg. p. 132 et seq.; 2 Thomp. Neg. 1186, note; 1196, note 6.

(2) It is...