Stillson v. Hannibal & St. Joseph R.R. Co.

• Court: United States State Supreme Court of Missouri
• Writing for the Court: NAPTON
• Citation: 67 Mo. 671
• Parties: STILLSON v. HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.
• Decision Date: 30 April 1878

67 Mo. 671

STILLSON
v.
HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

April Term, 1878.

[67 Mo. 672]

Appeal from Hannibal Common Pleas Court.--HON. JOHN T. REDD, Judge.

Geo. W. Easley for appellant.

H. J. Drummond for respondent.

NAPTON, J.

The injury, which this suit sought to redress, to a bright little girl of eight or nine years of age, remarkably sprightly and attractive, the pet of her father and of the entire village where they lived, is calculated to excite the sympathy of jurors and judges; but, in the administration of law, considerations of this sort must be discarded, and the case must be investigated and determined upon established legal principles applicable alike to all. The facts in this case, so far as they relate to the circumstances attending this unfortunate accident, are very few and simple, and established mostly by the witnesses for the plaintiff. There is, indeed, a mass of testimony of medical men in regard to the connection between the illhealth of the plaintiff, when suit was brought, and the injury which occurred eight years before, and the possibility of its having been occasioned by other causes. We shall omit any reference to this class of testimony, the question being one exclusively for the jury, and no points of law having been made on it in the instructions. The town of Brookfield in 1864, when this accident happened, contained about 150 inhabitants. The main street, about 100 feet wide, ran north and south through it, crossing the defendant's railroad at right angles. This road, running east and west, consisted of three tracks--the main track and two side-tracks south of the main track. The father of the plaintiff had a store-house on the south side of the railroad, east of the main street, and with his wife and daughter boarded at the hotel or eating-house of the

[67 Mo. 673]

village, which was on the north side of all the railroad tracks, and west of the main street. Sometime in the morning of June 1st, 1864, (it is not material about the hour), Mr. Stillson left his store and crossed over to the hotel, where his wife and daughter were, and in doing so passed through an aperture left between the eastern and western-bound trains, on the south side-track, which he then found to be about twenty inches. After transacting the business which was the cause of this visit--probably to go to dinner--he was accompanied back by his little daughter, the plaintiff, who said to him as they walked along over the main track, where there were no cars, and over the first side-track, where there were either no cars or a wide space between them on the railroad-crossing, “Papa, how did you get over?” In answer to this question the father described to the child how he got over, and when they reached the second or south side-track, where the crossing on the main street was totally obstructed, he pointed out to his child the place where he got over, and she, saying, “I will beat you over to the store,” tripped along ahead of him; and she found the space between the cars so close that, small and delicate as she was for her age, she had to turn sideways to get her body between the cars. From some cause the cars at this place had moved and diminished the space between them, and she was crushed between them at the waist. Her father was five or six feet behind her. This was not at the crossing on the main street, which was entirely obstructed by the train bound west, but was several feet east of the line of the street, and between the trains bound east and west. The father had crossed at this opening when he went over to the hotel, and found it about twenty inches; and another witness, who crossed through the aperture only five minutes before the accident, found it between fifteen and twenty inches wide. There was from the west of the main street a gradual declivity of the track towards the east, and at the time of the unfortunate accident there was a lighted locomotive

[67 Mo. 674]

at the west end of the train, preparing to start west. The eastward-bound train was fastened by brakes, and a stick of wood under the wheel near the east end. Of course the diminution of the aperture must have been occasioned either by some impulse imparted by the locomotive at the west end of the train, or by a gradual sliding back of...