RUSHENBERG v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN R. Co. (109 Missouri 112.) Injury to Children Attracted to Cars Loaded with Ice.-Sufficiency of Complaint. In an action for injuries to a child alleged to have been attracted to a train of cars kept standing on a street for the purpose of loading and unloading ice, the child having been injured while gathering pieces of ice under the cars owing to a train having been bumped against such cars, the petition is defective if it does not show that the defendant company was responsible for the manner of loading and unloading, that it was done in a negligent manner, or how long the child had been under the cars before they began to move. APPEAL from St. Louis circuit court. Action for $5000 damages, brought by father and mother as plaintiffs against the defendant company for causing the death of their minor son on the 23d day of June, 1888, who was crushed beneath a car-wheel while standing under one of a long train of freight cars on the defendant's tracks, which extend north and south on First Street at its intersection with Cherokee Street. The cars, it seems, were loaded with ice, and while being unloaded pieces of ice fell under and around the cars, whereby children were attracted there, and were accustomed to be attracted there by such ice, gathering the same; that while said minor was gathering ice, with other children of tender years, about and under said cars, thus standing on the tracks, the defendant carelessly and negligently bumped a long train of cars against the cars standing on the said tracks, so that said minor was caught under the wheel of the standing cars, receiving fatal injuries. Stated at large, the allegations of the amended petition, omitting formal parts, were the following: That the defendant now and at the times hereinafter set forth owned and operated, or had under its immediate charge and control, a certain railway and tracks extending north and south along and upon First Street, at its intersection with Cherokee Street, in said city, and at said times kept long trains of cars standing on, and run its cars and locomotives back and forth over, the said track. "And plaintiffs state further that on or about the 23d day of June, 1888, and for a long time prior thereto, defendant company by and through its employés, agents, and vice-principals kept long trains of cars standing on said tracks for the purpose of having them loaded with and unloaded of ice; that by the manner in which the said cars were loaded and unloaded pieces of the ice fell under and around said cars, and by reason thereof children of the neighborhood, including said Rushenberg, deceased, then about eight years of age, were attracted there, and induced to congregate under and around the same for the purpose of gathering said pieces of ice; that the said cars were machines or agencies dangerous in their very nature and character, and that the said pieces of ice offered an attraction to children to come there for the purpose of gathering the same, and their location under and around said cars made it a place dangerous for children to be near; that by reason of said attraction said place became resorted to by the public, and children of tender years, including the said Rushenberg, deceased, who were accustomed to congregate around and under the said cars; and that all these facts were known, or by the exercise of reasonable care might have been known, to defendant company, but that, notwithstanding the premises, defendant, in neglect of its duty, took no precaution to prevent accidents of the character hereinafter set forth, and in consequence thereof the said place, being then and there, in neglect of defendant's duty, left unguarded, and inviting to children, the said Rushenberg, deceased, without fault or neglect on the part of his parents, was gathering ice with other children of tender years about and under said cars; that defendant acting by and through its agents and employés, knowing or having reason to believe that children, and said Rushenberg deceased, were under or around one of the said cars, caused a long train of cars, carelessly and negligently, to be bumped against the cars standing on said tracks, so that the said Rushenberg, deceased, was caught under the wheels thereof, and one whole car and half of another passed over his body, inflicting injuries from which he died in a short time thereafter. Wherefore plaintiffs pray for judgment against the defendant for the sum of five thousand dollars, as is by statute in such cases provided, together with the costs of this suit." The defendant demurred to the petition on the ground that it did not state facts, etc. The trial court held the petition insufficient in law, and, the plaintiffs declining to plead further, gave judgment for defendant; hence this appeal. Virgil Rule, for appellants. H. S. Priest and II. G. Hebel, for respondent. SHERWOOD, C.J.-The sufficiency of the petition is, then, the only question the record presents. It will be observed that Petition insufficient. the petition does not charge that the defendant loaded or unloaded these cars; it merely states that the defendant "kept long trains of cars standing on said tracks for the purpose of having them loaded with and unloaded of ice." It does not directly or indirectly charge that the defendant had any hand whatever in such loading or unloading. In the absence of any such allegation, it is not seen how the defendant can be held responsible for any attraction that the pieces of ice falling to the ground while the cars were being loaded or unloaded furnished to the children of the neighborhood. If thus responsible then any railway company is equally responsible for injuries received by children while its cars are receiving or being discharged of any commodity at the warehouse of any merchant, or the mill of any miller, no matter whether the railway company were engaged in the act of receiving or discharging such freight or not. such be the law, it must be confessed that it goes farther than any case as yet decided. Nor does the petition even so much as charge that the cars were being loaded or unloaded in a negligent manner. That particles of ice should fall to the ground while cars are being loaded or unloaded would seem quite an ordinary if not an inevitable result of such an operation. Nor does the petition charge how long the minor son of plaintiff had been under the car before it began to move. For all to the contrary that the petition contains, the boy may have gone under the car first at the moment the long train of cars bumped against the one under which the plaintiff's son was. The defendant company owed the child no duty, unless after being aware of its peril. If The turntable cases are obviously distinguishable from this one, because a train of cars is not inherently dangerous, as is a turntable. Nor is this case like those where the employés of a railway company, in unloading salt from the cars, carelessly spilled salt upon the track, and let it remain there, thereby attracting cattle to the track; for here it is not charged that defendant's employés were engaged about the ice in any manner. Nor is this case like Schmidt's Case, 90 Mo. 284, for there the escape-pipe was capable of being inclosed; not so, however, with the cars on a public street. Nor is this case like Frick's Case, for there the public by long usage had acquired a prescriptive right to cross the track at a certain point, and the persons there crossing were not trespassers, but quasi-licensees of the railway company, as to whom that company owed a duty. The operation of railroad trains would certainly be rendered impracticable if it should be declared to be the law that before a freight train could be moved, or its cars backed up against one another, an inspec tion would first have to occur of every car to see if by any possibility any trespasser was in a situation to be injured in case the cars were moved. The court below rightly held that the petition stated no facts, etc., and its judgment should be affirmed. All concur, Liability of Railroad Company for Injury to Children Attracted to Dangerous Places.—See Catlett v. St. Louis, I. M. & S. R. Co., and note, ante, p. 113, 116; Barrett v. Southern Pac. Co. (Col)., 48 Am. & Eng. R. Cas. 532, note 535; Daniels v. New York & N. E. R. Co. (Mass.), 48 Id. 539, note, 545. MCDERMOTT v. KENTUCKY CENTRAL R. Co. (Kentucky Court of Appeals, Oct. 22, 1892.) Injury to Child Trespassing in Railroad Yard. In moving an engine to and fro in its yard a railroad company is not obliged to specially look out for trespassers on the track, and it is not negligence to fail to give a warning signal at every movement of an engine, or to fail to have an employé placed upon every backing engine to warn or look out for trespassers; and the fact that the trespasser is an infant does not affect the legal rights of the company. APPEAL from Bourbon court of common pleas. C. J. Bronston and Ward & Dickson, for appellant. Case stated. LEWIS, J.-Appellant, an infant, suing by his father, brought this action to recover for an injury to his foot, resulting in amputation just above the ankle, caused by one of appellee's locomotives running on it. But the lower court having, at conclusion of plaintiff's evidence, instructed the jury to find for defendant, which was done, the single question presented on this appeal is whether there was evidence conducing to show legal liability for the injury complained of. It appears that the railroad track upon which appellant, then about eight years of age, got hurt, was one owned by appellee, leading from Paris, where it occurred, to Maysville, there being three other tracks near the depot. Of these the most western, the Kentucky Central, leads to Covington, and between it and Maysville track is a switch track to a turntable, and another switch track to some place not made clear by the evidence. The father of appellant resides and keeps a boarding-house and saloon where the Winchester turnpike crosses the Kentucky Central Railroad, about 400 feet from the depot, towards Lexington; and had directed an elder son to go to the depot for the purpose of meeting his mother, who was expected to come that afternoon on the Kentucky Central from Covington. Appellant, though not required, nor having permission, accompanied his brother, as did also their little sister. But the train not arriving on time, the eldest boy, for some private purpose not connected with business of the company, proceeded from the depot to appellee's blacksmith shop, which had to be reached by going along on or beside the railroad tracks; and appellant went to the oil-house west of the Covington track, their sister returning home. After remaining at the oil-house a short time appellant started to follow his brother, going across the Covington and two intermediate tracks; but whether it was necessary for him in order to reach the shop to also cross or go upon the Maysville track does not clearly appear from the evidence. The engine, No. 10, which did the injury, had that afternoon pulled the Maysville train to Paris, and was, with tender attached, when appellant left the oil-house, upon the turntable, and before it left there he had crossed the three tracks, and probably reached the Maysville track. After going from the turntable track to the Maysville track, engine No. 10 was backed on the latter towards cars it was designed to be hitched to, and at a short distance from intersection of the two tracks the tender struck appellant, who, as he testifies, had stopped on the track to pick a cinder from his foot, his face being turned away from the backing engine. The evidence shows that no warning by bell or whistle was given of the retrograde movement of the engine; nor was there any person on it at the time except an employé, termed "hostler," whose business, it seems, is to do the necessary switching of engines and cars about the company's yard. But it was developed by the evidence offered for plaintiff that the place to which he was going, as well as the one he was at when hurt, is within the company's yard, to which he had no right nor could safely go; and, although there was some testimony showing that persons occasionally passed from Vine Street along or upon the track to the depot, it does not appear such passway was then being regularly used, or ever was used, by license of the company, express or implied. On the contrary, a signboard had been put up by which persons, other than employés of the company, were notified to keep off the tracks at and in vicinity of the place where appellant was injured; and he had been several times driven away, |