Spillane v. Missouri Pac. Ry. Co.

• Decision Date: 07 October 1896
• Parties: SPILLANE v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

37 S.W. 198

135 Mo. 414

SPILLANE v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri, Division No. 2.

October 7, 1896.

RAILROADS — INJURY TO PERSONS NEAR TRACK — NEGLIGENCE — EVIDENCE — INSTRUCTIONS — CONTRIBUTORY NEGLIGENCE.

1. An ordinance requiring a railroad company to station watchmen at certain crossings, to protect persons about to cross the tracks "at any such crossing," is not admissible in an action for an injury received at a point several hundred feet from one of the designated crossings.

2. Where it appeared that plaintiff, an intelligent boy, nine years old, familiar with the locality where he was hurt, and the movement of trains, walked slowly across the first of four parallel tracks, without looking, dragging a piece of ice by a string, and then stopped so close to the track that when an incoming train struck the string he was thrown down, an instruction that plaintiff was bound to look and listen before attempting to cross the tracks, and that he could not recover if he might, by ordinary care, have seen or heard the train in time to have avoided the accident, is not cause for reversal, when the jury were told in the same and in another instruction that the degree of care required was such as might reasonably be expected of one of plaintiff's age and experience.

3. An instruction to the effect that, if plaintiff and defendant were guilty of negligence which directly contributed to plaintiff's injury, he could not recover, is correct.

4. Error in an instruction as to the degree of care required by a boy while crossing a railroad track is immaterial, where he was not on the track when hurt, but was standing beside it, and the accident was caused by the engine catching a string, one end of which was attached to the boy's wrist, and the other to a piece of ice on the opposite side of the track.

5. Evidence that plaintiff, a bright boy, nine years old, familiar with the movement of trains in the locality where he was hurt, stood beside the railroad track as a train passed, having one end of a string attached to his wrist, and the other to a piece of ice on the opposite side of the track, and that the engine struck the string so as to throw plaintiff down, conclusively shows contributory negligence.

Error to circuit court, Jackson county; J. H. Slover, Judge.

Action by Dennis Spillane, a minor, by his guardian, against the Missouri Pacific Railway Company, to recover for personal injuries. From a judgment for defendant, plaintiff brings error. Affirmed.

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

R. H. Hamilton, R. E. Ball, and Fyke, Yates & Fyke, for plaintiff in error. Robinson & Carkener, for defendant in error.

GANTT, P. J.

This is an action for damages resulting from personal injuries sustained by plaintiff on the 13th of October, 1888. This is the second appeal in the cause. The first is reported in 111 Mo. 559, 20 S. W. 293. On the last trial the jury returned a verdict for defendant, from which plaintiff brings error.

The accident occurred at a point on defendant's railway in Kansas City 265 feet east of the east line of Grand avenue, where said avenue intersects defendant's tracks on Front street. At this point, and for several hundred feet both east and west, the defendant's railway is located on and along Front street, in said city. Grand avenue runs north and south; and the railway, east and west. Across Grand avenue, and at the point where the accident occurred, the defendant's railway consists of four parallel tracks. Beginning at the south, the first track is known as the outgoing, or east-bound, main track; the second, as the incoming, or west-bound, track. The other two are team or storage tracks, used in loading or unloading freight. East of Grand avenue the tracks are straight, but 300 or 400 feet west of Grand avenue there is a curve, so that a person coming from the west along the railroad track could not see beyond Grand avenue until after having passed this curve. Nor could a person on the track east of Grand avenue see a train coming from the west until after it rounded this curve. Coming from the west, there is a considerable up-grade, until near Grand avenue, and from that point east the track is practically level. The defendant's freight depot is located on the north side of the tracks, and on the west side of Grand avenue, and about 50 feet from the west line of said street; and its passenger depot is located on the south side of the tracks, and east side of Grand avenue. The platform of this depot extends from the east line of Grand avenue eastwardly from 100 to 200 feet, as variously estimated by the witnesses. Wood Bros.' ice house is located on the north side of the tracks, and something over 300 feet east of Grand avenue. The two main tracks are located on Front street, while the two team tracks on the north are located on private property just north of the north line of said street. The tracks are only a few feet apart, and the spaces between the rails are planked over for the accommodation of passengers getting on and off trains, and of persons desiring to load and unload freight. Teamsters and other persons having occasion to go to Wood Bros.' ice house were accustomed to travel north on Grand avenue until reaching the railway tracks, and thence diagonally across the tracks to a wagon road on the north side of the tracks leading to said ice house. This road leaves the railroad tracks at a point 150 feet east of the east line of Grand avenue, and 106 feet west of the point where the plaintiff received his injuries. The plat accompanying this opinion accurately describes the situation of the various points referred to in the testimony of the witnesses. The plaintiff's father resided with his family on Grand avenue, about a block and a half south of defendant's tracks. He had lived there about two years prior to the date of the accident, and had lived in the neighborhood of the place where the accident occurred for several years prior to that time. During all this time the plaintiff had been accustomed to playing about the railroad tracks, and was perfectly familiar with everything in the locality, and with the movement of the trains. According to plaintiff's own testimony, as well as that of his father and mother, and several neighbors who were intimately acquainted with him, he was a very bright, intelligent boy, and perfectly aware of the danger of being on or about the railroad tracks while trains were passing. At the time of the accident the plaintiff was something over nine years old. A month prior to the accident his mother had given to Miss Halbert, a teacher in the school to which plaintiff was sent, a statement that he was then nine years and three months old. During the summer vacation preceding the accident he had been engaged in selling papers around the city, and had continued this in the evenings, after the session of school began. His mother had been accustomed to send him to Wood Bros.' for ice. In the afternoon of the day of the accident, he was sent by his mother to Wood Bros.' for a piece of ice. He took with him a twine string, and tied one end of it to the ice, and the other end to his wrist, for the purpose of dragging the ice home, instead of carrying it. He was accompanied by his brother, a boy about seven years old. So far as the evidence shows, no person saw him from the time he left the ice house until after the accident had occurred. A switch engine, hauling about 40 cars, passed eastwardly on the south track, and just after it passed the plaintiff was discovered lying on the south side of this track, at a point 266 feet east of the east line of Grand avenue. He had received a very severe scalp wound, and the ends of two of the fingers of the left hand were mashed. None of the trainmen saw the plaintiff at the time of the accident. The engineer and fireman were at their proper places in the cab, and looking forward; but neither they, nor any of the other trainmen, knew of the accident until several hours after it had occurred. They were taking the cars to different places in the bottoms east of Kansas City, and did not return until late in the afternoon. When they returned they were informed by Mr. Hennesy, the defendant's freight agent at Grand avenue, of the accident. The petition charged negligence — First, in the failure to have a watchman present at the Grand avenue crossing of defendant's tracks, as required by sections 816 and 819 of chapter 42 of the ordinances of said city; and, second, in running said train in excess of six miles an hour, in violation of the ordinances of said city.

Section 816 provides that "one or more watchmen shall be employed at the expense of the person or corporation using railroad tracks or operating railroads within this city, to be stationed at each of the crossings hereinafter named, whose...