Stewart v. Missouri Pacific Railroad Co.

• Decision Date: 23 May 1925
• Docket Number: 23952
• Citation: 272 S.W. 694,308 Mo. 383
• Parties: CHARLES EDWARD STEWART, An Infant, by His Next Friend, JOHN W. STEWART, Appellant, v. MISSOURI PACIFIC RAILROAD COMPANY
• Court: Missouri Supreme Court

272 S.W. 694

308 Mo. 383

CHARLES EDWARD STEWART, An Infant, by His Next Friend, JOHN W. STEWART, Appellant, v. MISSOURI PACIFIC RAILROAD COMPANY

No. 23952

Supreme Court of Missouri

May 23, 1925

Appeal from St. Louis City Circuit Court; Hon. Frank Landwehr, Judge.

Affirmed.

Harry C. Barker and Boaz B. Watkins for appellant.

The court erred in sustaining the demurrer to plaintiff's evidence presented by defendant at the close of plaintiff's case. Dalton v. M. K. & T. Railroad Co., 208 S.W. 828; Rice v. Bridge & Transit Co., 216 S.W. 746; Stipetich v. Security Stone & Mfg. Co., 218 S.W. 964; Southard v. Kansas City So Ry. Co., 191 S.W. 1101; Fink v. Railroad, 161 Mo.App. 314; Caldwell v. Ry. Co., 74 Pa. St. 421; Livin v. Traction Co., 194 Pa. 156, 201 Pa. 58; Thomas v. Southern Pa. Traction Co., 112 A. 918; Livingston v. Wabash Railroad Co., 170 Mo. 452; Holmes v. Mo. Pac. Ry. Co., 190 Mo. 98; Ashworth v. Southern Ry. Co., 116 Ga. 635; Gilbert v. Miss. River & B. T. Railroad Co., 226 S.W. 263.

James F. Green, H. H. Larimore and M. U. Hayden for respondent.

(1) The evidence adduced by appellant wholly failed to establish either (a) that, before the instant at which he deliberately jumped from the train, appellant was in any position of danger, or (b) that he was oblivious of such danger. The humanitarian doctrine is not applicable to such a state of facts as are established by the evidence in this record appellant is not entitled to recover upon the theory pleaded in his petition, and the judgment of the trial court should therefore be affirmed. Kinlen v. Railroad Co., 216 Mo. 145; Epstein v. Railroad Co., 197 Mo. 720; Hornbuckle v. McCarty, 243 S.W. 327; Degonia v Railroad, 224 Mo. 564. (2) Appellant's evidence conclusively establishes that he was guilty of contributory negligence as a matter of law, for which reason he is not entitled to recover and the judgment of the trial court was therefore proper and should be affirmed. Kirby v. United Railways Co., 242 S.W. 79; McGee v. Railroad Co., 214 Mo. 520; Marshall v. United Railways Co., 209 S.W. 931; Spillane v. Railway, 135 Mo. 414; Payne v. Railway, 136 Mo. 562; Walker v. Railroad, 193 Mo. 453.

White, J. Walker, Blair and Graves, JJ., concur; Atwood, Woodson and Ragland, JJ., dissent.

OPINION

WHITE

This case was first heard in Division, and upon dissent was transferred to Court in Banc, where, on re-argument, the majority failing to agree on the divisional opinion, the case was re-assigned.

The suit was to recover for personal injuries claimed to have been caused to the plaintiff through the negligence of defendant's employees.

The plaintiff, not quite fifteen years of age, with six other boys, was acting as caddie on the Algonquin Golf Course. The seven boys left the course about three o'clock in the afternoon of August 2, 1920. The railroad tracks of the defendant pass near a putting green on the course, and the boys pursuing a path leading from the putting green walked up to the railroad tracks. At that time a freight train was approaching, and as it reached the point, two torpedoes exploded on the railroad track, a signal for the train to stop. It was not a regular stopping place for the train. The train, a long one, slowed down and stopped with the caboose at the rear near the path by which the boys approached. The seven boys proceeded to climb upon the cars, holding by the ladders on the sides, each boy taking to a separate car. The plaintiff testified that he climbed upon and held to a ladder on the seventh car from the caboose. Presently the train started. Three of the boys jumped off, Tom Donovan, Joe Folker and Paul Murphy. The plaintiff, Charles Stewart, his brother Joe Stewart, Leo Prosser and George Prosser held on and rode the train. The boys all lived at Maplewood, three miles from where they got on. As the train started one of the boys who got off called to two men sitting in the cupola of the caboose that some "kids" were on the train. To this the men in the caboose paid no attention; they were laughing and talking. Each of the boys on the cars testified that as the train would bend in the curves they could see the men in the caboose. The train acquired greater speed as it ran and swayed from side to side. When it arrived at Maplewood, passing Sutton Avenue, the plaintiff, his brother Joe, and Leonard Prosser jumped off. Jack Prosser hung on until the train stopped at Ellendale, then he got off and ran back up the track. The plaintiff, in jumping off, was drawn by suction under the train and his leg was cut off. He was taken to the hospital where his leg was amputated below the knee. It is for that injury he sues. The acts of negligence alleged are as follows:

"That at the time plaintiff climbed upon said train in the manner and under the conditions as aforesaid and thereafter, he was in a position of danger, as in this petition alleged, and oblivious of his peril and in plain view of the agents of the defendant in charge of and operating said train and said agents saw or knew, or by the exercise of ordinary care should have seen or known, that the plaintiff was in a position of danger, as in this petition alleged, oblivious of his peril before and at the time and after they started said train and while plaintiff was on said train, in time, by the exercise of ordinary care, to have put plaintiff off of said train before starting it, or after starting it, to have stopped said moving train with the appliances and means at hand, with safety to those on said train and put plaintiff off and thus avoided running over and injuring the plaintiff as herein pleaded."

Thus the case was based upon the humanitarian doctrine. After the evidence was in the court sustained a demurrer to it. The appellant took an involuntary nonsuit with leave, and after an unavailing motion to set aside the nonsuit appealed from the judgment.

I. The theory of the plaintiff is that employees of the company saw the boys hanging upon the cars, and saw their position was one of imminent peril, and, in the exercise of ordinary care to prevent injury to them, should have put them off before the train started, or should have stopped and put them off. This upon the theory that the two men in the cupola were employees in charge of the train, were bound to have seen the boys hanging on to the cars, and to have known the danger of their riding in that way. There is no satisfactory evidence that the men in the cupola of the caboose were employees in charge of the train, and the plaintiff was seven carlengths from the caboose. One of the other boys was on the sixth car, and the others further away. However, it may be conceded that the defendant was charged with notice that the boys were on the cars.

In order to charge the defendant with negligence in failing to observe the humanitarian rule, the boys must have been in imminent peril from the operation of the train. The negligence alleged was failing to put the plaintiff off the train before or after it started. There was no allegation that defendant was negligent in failing to stop and let the boys off in safety at their destination, or in failing to ascertain where they wanted to stop. Such an allegation would have put the pleader outside the humanitarian rule, and would have given plaintiff, who was a mere trespasser, the status of a passenger. Thus plaintiff would have pleaded himself out of court.

The danger he incurred was that incident to being on the car in motion, and the duty of defendant was measured by the extent of that peril. No doubt, holding to the ladder on the side of a rapidly moving car, is a dangerous way to travel, but in this instance was the danger imminent in the sense that is required to invoke the humanitarian rule? It is well known that trainmen ride that way. The danger attending the boys in riding the three miles they intended to go...