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

• Decision Date: 04 December 1893
• Citation: 24 S.W. 472,119 Mo. 256
• Court: Missouri Supreme Court
• Parties: SCHMITZ v. ST. LOUIS, I. M. & S. RY. CO.

24 S.W. 472

119 Mo. 256

SCHMITZ v. ST. LOUIS, I. M. & S. RY. CO.

Supreme Court of Missouri.

December 4, 1893.

ACTION AGAINST RAILROAD COMPANY — STREET CROSSING — INJURY TO INFANT — EVIDENCE — DAMAGES.

1. In an action against a railroad company for injuries received by a child while attempting to pass between cars of a train standing on a street crossing, evidence that he saw others cross in that way before him is admissible on the issue of defendant's negligence in starting the train without warning.

2. In such case, evidence that no flagman was present at the time of the accident is admissible to show want of care to prevent accidents on defendant's part.

3. The deposition of a witness, not a party to the suit, cannot be read in evidence if he is present in court.

4. It is negligence for a railroad company to leave its cars standing across a city street with a space of nine inches between them, and to close up such space without giving any warning.

5. In an action for injuries received by a boy nine years of age while passing between two cars nine inches apart on a street crossing, the jury, in passing on the question of contributory negligence on his part, should consider whether, by reason of youth and inexperience, he was aware of the danger of so passing.

6. Where a boy nine years old is injured so as to be a cripple for life, it is proper to allow him for mental anguish arising from his consciousness of that fact.

7. Where a boy nine years old is injured so as to be a cripple for life, it is proper for the jury, in estimating damages, to consider the resulting impairment of capacity to earn a living after his majority.

8. Such damages may be allowed though the petition contains no specific allegation as to plaintiff's inability to earn a livelihood, nor to what extent it would be impaired after his majority, and there is no evidence as to such facts.

Sherwood, J., dissenting.

In banc. Appeal from circuit court, Warren county; W. W. Edwards, Judge.

Action by William Schmitz, by his next friend, Anton Schmitz, against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment for plaintiff defendant appeals. Affirmed.

H. S. Priest and H. G. Herbel, for appellant. S. N. Taylor, for respondent.

BURGESS, J.

This is a suit by William Schmitz, a minor, nine years old, by his next friend, Anton Schmitz, to recover damages for personal injuries caused by the negligence of the defendant in operating its cars upon Lesperance street crossing in the city of St. Louis. It was brought in the circuit court of the city of St. Louis, and thereafter taken by change of venue to Warren county circuit court. It was tried before a jury, and resulted in a verdict and judgment of $5,708 for plaintiff.

The petition, or that part of it which is before this court for consideration, is as follows: "Now comes the plaintiff, and avers that he is a minor, under the age of ten years, and that Anton Schmitz was duly appointed as his next friend to bring this suit, before said suit was brought. That defendant is, and at the time hereinafter mentioned was, a corporation duly organized under the law of the state of Missouri, and engaged in the operation of a railroad, a part of which is in the city of St. Louis. Plaintiff further states that on the 24th day of August, 1890, and in the daytime, he was going east on a public street in said city known as `Lesperance Street,' where said street is crossed by defendant's railroad in said city. That at said time and place a train of flat cars was standing across said street, which impeded his progress on said street, which train stood there for several minutes, and not in motion. The plaintiff, seeing said train standing perfectly still for several minutes, and there being no sign or indication that it was going to move, and seeing many adults and others crossing over the same in said street — between the flat cars — without let or hindrance, or notice not to do so, undertook to cross over between two such flat cars, in said street, where the other persons upon said street had crossed immediately before him. That he stopped, listened, and looked before so crossing, and the bell of the locomotive was not rung, the whistle was not sounded, nor was any audible or visible signal given by defendant or its employes to notify plaintiff that said train was about to be thrust backwards, nor was any brakeman in sight of plaintiff, nor was any brakeman on the rear of said train, nor was there any gate or bar across said street where it was crossed by said railroad; and without any notice or warning whatever given on the part of the defendant, the said defendant violently, suddenly, carelessly, and negligently caused the engine, propelled by steam power, to jam the cars of said train together, thereby breaking and crushing the bones of plaintiff's foot and ankle between the bumpers of two of said cars while he was in the act of crossing as aforesaid, and in consequence he was injured, and maimed for life, and caused to suffer great physical and mental pain and agony. Plaintiff further states that, considering his age and intelligence, he was at the time exercising that degree of care and diligence which could be expected of him, or that was due from one of his age, and that the immediate cause of said injury to him was the carelessness and negligence of the defendant in failing to do its duty in protecting persons, and especially children of immature judgment, in the lawful use of said public street from injury by its said cars; that the car so thrust backward which crushed plaintiff's foot was attached to several other cars and a locomotive, constituting a freight train, which at the time of said injuries was propelled backward suddenly and violently by steam power. Wherefore plaintiff avers that he has been injured and sustained damages in the sum of twenty thousand dollars, (20,000,) for which, with cost of suit, he prays judgment." The answer was a general denial and plea of contributory negligence on plaintiff's part in attempting to cross the track at the time, place, and manner he did. Plaintiff replied, denying the new matter in the answer.

The facts are that on August 24, 1890, William Schmitz, aged nine years and two months, with three other boys, went east on Lesperance street, a public street in the city of St. Louis, and, on arriving at the place where defendant's railroad tracks cross the street, they found their way impeded by two cars, the bumpers of which were disconnected, leaving an opening of about nine inches between them. They saw about 50 to 75 persons cross the track upon which said cars were standing, in a line near the center of the most traveled part of the street, — some of whom passed over and some under the disconnected bumpers, and some passed through the 9-inch space between them sideways; while some others climbed over the car, it being a flat car. After all of these had passed over, plaintiff and his then comrades still stood, looked, listened, and waited for the cars to separate further, thus widening the gap. After thus waiting for the cars to be moved from the street crossing five to fifteen minutes, during which time there was no flagman or other employe of defendant in sight, and neither seeing nor hearing any indications that the cars would be moved, and being anxious to reach the other side of the railroad track, one of these boys crossed the track by passing through the disconnected bumpers, and then another climbed over said bumpers, and plaintiff endeavored to follow him, and in doing so put one foot on one of the bumpers and raised his body, and, as his other foot was swinging between the disconnected bumpers, the defendant's employes in charge of the engine caused it suddenly to jam the bumpers of the cars together, thereby catching plaintiff's foot and ankle between said disconnected bumpers, crushing the bones and muscles. The flagman was not in sight. The evidence shows that the plaintiff did not think that the cars would be moved without his being notified, and did not apprehend any danger in endeavoring to pass over the bumpers as he did on this occasion. It also shows that he suffered intense physical pain for many months after his injury, and that he is crippled for life. The extent of his injuries was testified to by Dr. Faber; and his foot and ankle, as it appeared at the trial, was exhibited to the jury without objection.

During the course of the trial plaintiff was permitted, against defendant's objections, to prove that a large number of persons had crossed the train before he did, and that there was no watchman at the crossing to warn them of danger. The defendant saved his exceptions to these rulings of the court. The testimony adduced by the defendant tended to prove that a few minutes before the accident there was a train of cars standing north of the crossing; that defendant's watchman, John Misch, was standing on the west side of the track on which plaintiff was injured; that he saw several cars moving northward on the track towards the crossing at a slow rate of speed; that he crossed over this track to the east side, just a moment previous to the closing of the crossing; that he did not see plaintiff or his companions anywhere near the crossing at that time, nor did he see them there at all until after he heard the cry of pain caused by the crushing of plaintiff's foot; that the accident happened only a few moments after he had crossed over the track; that he was standing on the next track east of the one on which plaintiff was injured, and was within a few feet of him at the time; that there was a train backing northward towards the crossing a few moments before the accident; that the men in charge of this train were coupling up detached sections of cars for the purpose of making up a train; that the car which injured plaintiff formed a part of one of these detached sections, but the train backing north...