72 Mo. 50 | Mo. | 1880
This was a suit to recover damages under the 2nd section of the damage act, based on the allegation that the plaintiff’s son, Athen Bell, was killed by the negligence of the defendant’s agents, in running a train through the town of Meadville, at an improper rate of speed and without giving timely notice of its approach.
It seems that Athen Bell, who was past fifteen years old, and well grown for his age, had, at the request of bis father, who had recently moved from Saline county into that neighborhood, gone to Meadville to procure some corn, and that about two o’clock in the afternoon, when the fast passenger train of defendant from the east was due,hestood upon the main track between the rails looking at an engine attached to a freight train which was on the switch
The following were the instructions in the case given at the instance of the plaintiffs:
1. It stands admitted by the pleadings in this cause that on the 11th day of May, 1875, on the track or line of the Hannibal & St. Joseph Railroad, in the town of Mead-ville, in Linn county, Athen Bell, the son of the plaintiffs, was struck and killed by a locomotive engine attached to a train of cars, run and operated on defendant’s said railroad by its agents, servants and employees.
2. If the jury believe from the evidence that the plaintiffs, John A. Bell and Eliza J. Bell, are husband and wife, and the parents of Athen Bell, who was killed on defendant’s railroad at the time and place stated in the petition, and that said Athen Boll was, when so killed, a minor and unmarried, then the jury should find their verdict for the plaintiffs ; provided they further believe from the evidence that said Athen Bell died from an injury resulting from or occasioned by the negligence or unskillfulness of any agent or employee of the defendant whilst running,
3. It is the duty of those in charge of a locomotive and train of cars in approaching the crossings of the public streets to commence ringing the bell or sounding the steam whistle at the distance of eighty rods therefrom, and to keep ringing the bell continuously or sounding the steam whistle at intervals until the train shall have passed over such public street, and if the jury believe from the evidence that, in this case, as the train approached and passed over a public street in the town of Meadville, the person in charge thereof did not ring the bell or blow the whistle as above required, and that the hoy, Athen Bell, was struck by the locomotive and killed by reason of said omission aud without fault on his part, then the jury will find their verdict for the plaintiffs.
4. Railroad companies and those operating and running their trains should exercise greater care and caution at points where their road passes through populous towns and villages than would be necessary in districts not so thickly populated.
5. Railroad companies, owing to the dangerous character of the vehicles and machinery which they operate, are held to the greatest care, caution and skill in the management of their business.
6. Notwithstanding the jury may believe from the evidence that the said Athen Bell was improperly on the track of defendant’s railroad, and that it was negligence on his part to have been there at that time; yet if the jury further find from the evidence that the servants and employees in charge of the engine and train mentioned in the petition were negligent in running and managing the same, and that such negligence and improper management of said engine and train were the direct and immediate cause of the death of said Athen Bell, then the jury are bound to find for the plaintiffs.
7. Although the jury may believe from the evidence
8. While railroad companies are not limited by law as to rate of speed, yet whether the rate of speed in any particular case is excessive or dangerous, is a question for the jury, to be determined by them in view of the time, place and circumstances, and if in this case the jury believe that the rate of speed at which the train was approaching the town of Meadville, and at the time the boy was struck, was excessive or dangerous at that time and place, then those in charge of it were guilty of negligence in so running it.
9. In making up their minds whether the rate of speed at which the train was running at the time the boy was struck and killed was dangerous, the jury may take into consideration the time, place and all the surrounding facts and circumstances detailed in evidence.
The defendant then prayed the court to give the following instructions to the jury:
1. The burden of proof is on the plaintiffs to show every material fact going to make up the issues, and unless they have proven by a preponderance of evidence to the satisfaction of the jury that young Bell was killed by the carelessness and negligence of defendant, and without his contributing proximately thereto, they must find for defendant.
2. If the jury believe that deceased was killed by reason of his own negligence and not by the negligence of defendant, then they must find for the defendant, although they may believe that at the time the train struck him it
3. Although the jury may believe that in some regards the defendant was negligent, yet if they further believe from the evidence that deceased, by the exercise of ordinary prudence and caution, could have avoided the accident, they must find for the defendant.
4. If the jury believe from the evidence that there is a curve in defendant’s road just east of the depot at Mead-ville which prevented the engineer of the engine drawing the train in question from seeing Athen Bell upon the main track of said road between the crossing and said depot until such engineer was within 200 or 300 yards of said depot; that, owing to the grade on said road between said points, said engineer could not stop said engine and train after seeing said Athen Bell, so as to prevent striking and killing him; that said engineer sounded the alarm whistle on said engine as soon as he discovered said Bell to be upon said track, and kept sounding it so long as there was any chance of warning said Bell of the approach of said engine and train, they will find for the defendant, notwithstanding they may further believe from the evidence that said train was running at a speed of twenty-five miles an hour or faster.
5. If the jury believe from the evidence that the engineer of the engine drawing the train in question could not see Athen Bell, the deceased, until within from 200 to 300 yards of him, and that owing to the grade he could not stop his train after so seeing said Bell, so as to prevent striking and killing him, they will find for the defendant, provided they shall further believe from the evidence that said engineer sounded the alarm whistle as soon as he discovered said Bell to be upon the main track of defendant’s road and kept sounding it so. long as there was any chance of warning said Bell of the approach of said engine and train.
6. Although the jury may believe that the train which
7. If the jury believe from the evidence that Athen Bell, the deceased, was a person of sufficient size to be apparently capable of taking care of himself, the engineer of the engine which struck him had a right to presume that, upon due warning being given to said Athen Bell, he would leave the track and get out of the way of said engine.
8. If the jury believe from the evidence that defendant’s train could have been seen by young Bell at the time of the accident a distance of 200 steps or more from the spot where he was struck by the engine, or that he could have heard it that or a greater distance had he exercised his senses of sight and hearing, notwithstanding which facts he remained on defendant’s track and was struck and killed by the engine, such action on his part was negligence, and if the jury believe his death was caused proximately by such negligence, the plaintiffs cannot recover.
9. It is negligence and carelessness for a person to stand on the track of a railroad without keeping watch both ways for trains. And if the jury believe from the evidence that Athen Bell was standing on the defendant’s track at the time the defendant’s fast train was due, and that the agents of defendant in charge of said train exercised ordinary care and prudence in the management of said train, and did all they could to stop the train and avoid the accident at the time said Bell was struck, then they must find for defendant.
11. Although the jury may believe from the evidence that the engineer of the engine that struck Athen Bell did not reverse his engine, yet he had a right to presume that said Bell would get off the track on the approach of the engine, and if he, said engineer, acted upon his judgment and did what he judged was most likely to save the boy in applyiug the air brakes and sounding the danger signals, then his omission to reverse his engine was not negligence.
The court gave those numbered one, two, three, four, five, six, seven, eight, nine and ten, and refused to give that numbered eleven. To the refusal of the court to give that numbered eleven, the defendant at the time excepted.
Notwithstanding his negligence, the employees of the railroad company had no right to run over him, and the decisive question in the case was whether, after discovering the position of young Bell and that he had not moved at the sound of the alarm whistle, the engineer did every