Wencker v. Missouri, Kansas And Texas Railway Co.

• Citation: 70 S.W. 145,169 Mo. 592
• Parties: WENCKER, Appellant, v. MISSOURI, KANSAS AND TEXAS RAILWAY COMPANY
• Decision Date: 27 October 1902
• Court: Missouri Supreme Court

70 S.W. 145

169 Mo. 592

WENCKER, Appellant, v. MISSOURI, KANSAS AND TEXAS RAILWAY COMPANY

Supreme Court of Missouri, Second Division

October 27, 1902

Appeal from Warren Circuit Court. -- Hon. E. M. Hughes, Judge.

Affirmed.

W. C. & J. C. Jones, J. W. Delventhal and A. H. Roudebush for appellant.

(1) The demurrer to the evidence should have been overruled. (a) Though the facts are undisputed, if different men might honestly draw different conclusions from them, the case should be left to the jury. Thompson on Trials, sec. 1663; Railroad v. Stout, 17 Wall. 663; Brink v Railroad, 17 Mo.App. 194; Tully v. Railroad, 47 A. 1019; Heppel v. Railroad, 51 N.W. 1049; Wyatt v. Railroad, 55 Mo. 485; Norton v. Ittner, 56 Mo. 351; Stoddard v. Railroad, 65 Mo. 514; Railroad v. Van Stenburg, 17 Mich. 99; Wilkins v. Railroad, 101 Mo. 93; Callahan v. Warne, 40 Mo. 137; Roddy v. Railroad, 104 Mo. 234. (b) It is not negligence, per se, to attempt to get on a slowly-moving train, and whether it is or is not negligence, is a question of fact for the jury. Wyatt v. Railroad, 55 Mo. 485; Doss v. Railroad, 59 Mo. 27; Nelson v Railroad, 68 Mo. 593; Kelly v. Railroad, 70 Mo 604; Straus v. Railroad, 75 Mo. 185; Swigert v. Railroad, 75 Mo. 475; Clotworthy v. Railroad, 80 Mo. 221; Leslie v. Railroad, 88 Mo. 51; Weber v. Railroad, 100 Mo. 194; Tulks v. Railroad, 111 Mo. 340. (c) If the boy used that care which may be reasonably expected from one of his age and capacity, then he was not guilty of contributory negligence; and the question whether he did or did not use that care, was a question of fact which should have been left to the jury. Lynch v. Nurdin, Ad. & El. 1 Q. B. 30; Beach on Contrib. Neg., sec. 117; Boland v. Railroad, 36 Mo. 484; O'Flaherty v. Railroad, 45 Mo. 73; Koons v. Railroad, 65 Mo. 592; Donoho v. Vulcan Iron Works, 75 Mo. 404; McCarthy v. Railroad, 92 Mo. 541; Williams v. Railroad, 96 Mo. 275; Eswin v. Railroad, 96 Mo. 290; Spillane v. Railroad, 111 Mo. 555; Berger v. Railroad, 112 Mo. 238; Schmitz v. Railroad, 119 Mo. 276; Payne v. Railroad, 129 Mo. 416; Sly v. Railroad, 134 Mo. 681; Graney v. Railroad, 140 Mo. 89. (d) If there is any evidence, however slight it may be, and whether direct or inferential, the case must go to the jury. Speed v. Herrin, 4 Mo. 356; Emerson v. Sturgeon, 18 Mo. 170; McKown v. Craig, 39 Mo. 156; Singleton v. Railroad, 41 Mo. 465; Routsong v. Railroad, 45 Mo. 236; McFarland v. Bellows, 49 Mo. 311; Gannon v. Gas Company, 145 Mo. 502. (2) It was the duty of the train employees to warn persons in or about the train of the danger likely to result from the "running out of the slack." Though the boy was guilty of negligence, yet if the conductor saw, or by the exercise of ordinary care might have seen, him in or approaching a position of danger in time to warn him or avoid the injury, and failed to give such warning, the defendant is liable. Isabel v. Railroad, 60 Mo. 475; Williams v. Railroad, 96 Mo. 280; Shaw v. Railroad, 104 Mo. 548; Hanlon v. Railroad, 104 Mo. 381; Fiedler v. Railroad, 107 Mo. 645; Rosenkranz v. Railroad, 108 Mo. 9; Dahlstrom v. Railroad, 108 Mo. 525; Dixon v. Railroad, 109 Mo. 429; Humbird v. Railroad, 110 Mo. 76, 81; Beardon v. Railroad, 114 Mo. 384; Sullivan v. Railroad, 117 Mo. 214; Hicks v. Railroad, 124 Mo. 115; Moore v. Railroad, 126 Mo. 265; Bunyon v. Railroad, 127 Mo. 13; Sinclair v. Railroad, 133 Mo. 233; Ennis v. Railroad, 155 Mo. 20. (3) The boy was entitled to the same protection as if he were a passenger. Shearman & Redfield on Neg., sec. 490; Ray on Negligence, p. 6; Hutchinson on Carriers, secs. 556, 562; Sherman v. Railroad, 72 Mo. 63; Muelhansen v. Railroad, 91 Mo. 332; Wagner v. Railroad, 91 Mo. 512; Whitehead v. Railroad, 99 Mo. 263; Murphy v. Railroad, 43 Mo.App. 346; Buck v. Railroad, 46 Mo.App. 563; Wilton v. Railroad, 107 Mass. 108; Cleveland v. Steamboat Co., 68 N.Y. 306; Gordon v. Railroad, 40 Barb. 546; Jacobus v. Railroad, 20 Minn. 134; Smith v. Railroad, 32 Minn. 1; Allendar v. Railroad, 37 Iowa 264; Brien v. Bennett, 8 Car. & P. 724. (4) The permission of the mother was not the proximate cause of an injury that could not have happened except for the gross carelessness of the defendant's servant. Buck v. Railroad, 46 Mo.App. 565; Railroad v. Ogier, 11 Casey 72; Drew v. Railroad, 26 N.Y. 49; Crossgrove v. Ogden, 49 N.Y. 255; Railroad v. Lewis, 29 P. F. Smith 33.

Geo. P. B. Jackson for respondent.

(1) The evidence did not establish any negligence on the part of defendant or any of its servants. (a) There was no pretense of careless handling of the train. (b) The plaintiff's son was not acting under any instruction or invitation given by authority of defendant; at best he was no more than a licensee of Stone -- who was the conductor, but was not acting as such in having the lunch placed in the caboose. Defendant is not liable for the acts of Stone unless they were within the scope of his employment, and done in furtherance of defendant' business. Reilly v. Railroad, 94 Mo. 600; Garretzen v. Duenckel, 50 Mo. 104; Ridge v. Transfer Co., 56 Mo.App. 133; Meade v. Railroad, 68 Mo.App. 92; Cousins v. Railroad, 66 Mo. 572; Snyder v. Railroad, 60 Mo. 443; Walker v. Railroad, 121 Mo. 575; Snider v. Crawford, 47 Mo.App. 8; Hartman v. Muehlebach, 64 Mo.App. 565; Farber v. Railroad, 116 Mo. 81; Woolwine v. Railroad, 36 W.Va. 329; 1 Fetter's Carriers of Passengers, sec. 239; 1 Elliott on Railroads, secs. 214 and 215; 3 Ibid, sec. 1256, at p. 1966, and sec. 1250 at p. 1954, and sec. 1251; Gurley v. Railroad, 104 Mo. 226. (c) Defendant was under no duty to discover plaintiff's son either on the caboose steps or in the act of getting on, nor to warn him not to get on. The most that could be exacted of defendant is that, after the men in charge of the train discovered the boy in a place of danger, they should not willfully injure him or knowingly permit him to be injured by any means that could be prevented. Authorities cited above. (2) The plaintiff's son was of sufficient capacity to be responsible for his own conduct, and was therefore guilty of such negligence contributing to his death as precludes a recovery by his mother. Ridenour v. Railroad, 102 Mo. 270; Lynch v. Railroad, 112 Mo. 437; Spillane v. Railroad, 135 Mo. 414; Payne v. Railroad, 136 Mo. 562; Schmitt v. Railroad, 160 Mo. 43. (3) The plaintiff herself was guilty of negligence in sending her son to the place where he met his death, regardless of the capacity of the boy, while the more incapable he was of taking care of himself, the greater was her want of care in sending him. Stillson v. Railroad, 67 Mo. 674; Koons v. Railroad, 65 Mo. 592; Winters v. Railroad, 99 Mo. 509; Senn v. Railroad, 124 Mo. 628.

OPINION

BURGESS, J.

This is an action by plaintiff, the mother of Roy Wencker, deceased, a minor, to recover from defendant the statutory penalty of $ 5,000 for his death, which she alleges was occasioned by the negligence of defendant in the management of its train which ran upon and killed him.

The accident happened at the village of Augusta, St. Charles county, Missouri, where the track of defendant's railroad runs east and west. The depot is on the north side of the track. During the five years immediately preceding the day in question, the plaintiff had furnished daily lunches to trainmen of the Missouri, Kansas & Texas railway. During the last two years of this time these lunches in baskets had been carried to the train, sometimes by one, sometimes by the other of two sons of the plaintiff, Fritz and Roy, aged respectively fourteen and eleven years. Roy was in the habit of carrying them in summer, and had been doing so daily for six weeks next preceding the day in question. Both boys had been often directed by Conductor Stone, mentioned below, and by other conductors, to put the lunches in the caboose, and take away the empty baskets. It was necessary, and they had long been accustomed, to get aboard trains for that purpose. On October 4, 1897, about two o'clock in the afternoon, Roy Wencker was standing on the depot platform near the east end, holding a basket of lunch and a jug of coffee prepared for the trainmen on the west-bound local freight. That train, consisting of freight cars, with a caboose on the rear end for the accommodation of passengers and trainmen, drew up to the depot and ran along till the front end of the caboose passed within three steps of Roy and stopped three or four steps west of him. When the train stopped, Conductor Stone stepped off the front platform of the caboose and, without warning to any one on or about the platform, walked westwardly on the platform. Immediately thereafter, Roy, being wholly unwarned of any danger stepped upon the platform or steps of the caboose with the basket and jug in his hands. A sudden movement of the car backward threw him under the car immediately in front of the caboose, by which he received injuries from which he died. The sudden movement of the train was caused by the "running out of the slack" of the train, a movement of constant occurrence in freight trains, and a movement which the train employees, and particularly Conductor Stone, well knew would occur within a very few moments after the engine came to a standstill.

This constituted the plaintiff's evidence in chief, and on its submission the defendant prayed the court to give the following instruction in the nature of a demurrer to the evidence:

"The court declares the law to be, that upon the pleadings and evidence in this case the plaintiff is not entitled to recover, and the finding must be for the defendant."

This instruction was given by the court and the plaintiff duly saved her exception thereto, whereupon plaintiff took an involuntary nonsuit, with leave to move to set the same...