About four o’clock p. m. on the 11th day of December, 1908, Edward Childress, the eight-year-old son of the respondents, was struck and killed by a street car of the defendant on Twentieth street, in the city of Joplin, and this action was instituted by respondents to recover from the appellant the penalty or damages provided under section 2864, Revised Statutes 1899, as amended by the Session Acts of 1905. The cause was tried before a jury resulting in a verdict in favor of the respondents for the sum of four thousand dollars, and the defendant appealed therefrom.
The petition alleged that the appellant was engaged in operating a street railroad, with double tracks, on Twentieth street in the city of Joplin; that said street was used by a large number of people, women and сhil
The answer admitted that appellant was operating its cars on the streets, and alleged that the accident was caused solely by the negligence and carelessness of said infant suddenly darting in front of one of appellant’s cars when the same was so near him that it was impossible for appellant’s motorman to stop the car. The reply was a general denial.
The appellant concedes that the evidence on behalf of the respondents tended to support the theory of their petition, and that the case was one for the jury. In fact, there are only three reasons urged for the reversal of the judgment, and they are as follows: First, the court erred in overruling appellant’s application for a continuance made during the trial; second, that the
The application for continuance was filed because appellants claimed to have been surprised during the trial by the testimony of A. C. Ford, Mrs. A. J. Water-house, and Calvin Steltz. The evidence showed that Twentieth street runs east and west, and that Bird street runs north and south across said street, and that the nest street east of Bird street is Ivy street, which also runs north and south across said Twentieth street; and that there is an alley running north and south aross Twentieth street between Bird and Ivy streets.
Ford was placed upon the stand by the respondents, and testified, on direct examination, that he was standing on Ivy street at the intersection of Twentieth street, waiting for a car which wag- coming from the west, going east; that he first, saw the car at Bird street, and when he first saw the boy, he was leaving the alley from the north, and that after leaving the alley he stаrted towards the tracks and got over one track and on to the other when he was struck by the eastbound car; he also testified that he did not notice that the speed of the car was slackened in any manner before it struck the boy.
On cross-examination, the witness testified that the boy was traveling in a trot and in a southeasterly direction, and was in about eight or ten feet of the car when he stepped in front of it, and that signals were given about Bird street and after. It was also shown on cross-examination that the witness made a written statement and signed it the next day after the accident, and that the same was made at the request of the appellant’s representative. This written statement was offered in evidence by the appellant after the respondеnts had closed their case in chief, and in this state
This cause had been tried once before, but the witness Ford, was not called by either party to testify.. After the introduction of this statement to contradict the witness Ford, the appellant proceeded with the trial, and called the said Mrs. Waterhouse and Calvin Steltz, and after they had testified, also called four other witnesses and examined them upon the issues in the case. After they had all been examined, an application for continuance was filed, supported by affidavit, and to which was attached the testimony оf said Calvin Steltz and Mrs. Waterhouse given at the former trial. The application státed that appellant had been surprised by the testimony of Ford, Mrs. Waterhouse and Calvin Steltz; that it had in its possession the said prior statement of Ford, and relied upon him testifying as set forth in said statement; that Mrs. Waterhouse was put on the stand at the former trial by the appellant, and her testimony at said trial was in contradiction- to her testimony given at the present trial, and alleging that at the former trial she testified that she heard the car whistle and saw the boy on the north side, of Twentieth-street, and that when the car was about even with him, he suddenly darted in front of it and was struck by the corner of the car.
The application further stated that Calvin Steltz was also a witness on behalf of the appellant аt the former trial, and that his testimony then was in contradiction with that given at the time the application Avas made; that on the former trial, said Steltz testified that the boy ran some distance along the north track before starting across the south track.
It was further alleged that the appellant placed said witnesses upon the stand, relying upon their testi
The court overruled the application for continuance, and appellant proceeded with its testimony, after properly saving its exceptions tó the ruling of the court on said application.
There is nothing in the evidence to show but what appellant knew that Ford Avas to be a witness in behalf of respondents, and that he had been duly subpoenaed and was there for the. purpose of giving testimony to sustain respondents’ cause of action. It was not shown that he had talked with any of the representatives of the appellant just prior to the time he went on the stand, and they must have known that he was going to testify to something differently from his written statement, or the respondents would not have called him as a witness unless they were 'deceived regarding his testimony.
It Avill not do to say that where one party knows that a witness is going to be placed on the stand to give evidence, that he can wait, and if the witness testifies against him, then ask for a continuance, and alleging that the witness had made statements contradictory to the testimony he was then giving. This would result in a continuance in nearly every case tried where there are any number of Avitnesses. The witness was not called by the appellant, and if appellant believed he would testify to the facts as set forth in his written statement, it is strauge that he was not subpoenaed at the trial
On the former trial, the witness Steltz, on direct examination, testified that he saAv the boy start to run across the street car track towards the car from the alley or sidewalk, angling across from the alley towards the car, and he ran right along the edge of the car and got where he could not see him any more; that hé saw the boy across the north track, and that he was going in a. trot at that time. And on cross-examination, he testified as follows: That after the alarm was sounded at Bird street, he looked out and saw the boy walking or running angling across toward the car, and this was after the alarm had been sounded away up the street. He further testified that the sounding of the alarm attracted the boy’s attention and the motorman looked toward the boy, but never stopped his car, and it got so close to the boy, he could not stop it.
At the last trial, the witness, on direct examination, testified as follows: “Q. I will ask you if you saw this boy that was injured by the car? • A.. Yes, sir. Q. Where was he when you saw him? A. Corning out of that alley when I first seen him. Q. How far was the car from him at that time? A. I don’t know just how far it was; he started towards the car, and run down along side of the car about eight or ten feet, and that was the last I could see of him. Q. You heard the signal and looked and when you heard that signal and looked to see what it meant, you saw the little boy? A. Yes, sir. Q. Came out of the alley and start diagonally across the track as though he was going to cross the track? A. Yes, sir; coming toward the car. Q. It was evident to your mind he was going in front of that car? A. Yes, sir. Q. The boy kept going towards the track and the car come down there and finally struck the boy? A. Yes, sir. Q. Going in a southeasterly direction and kept going that way, and
And on re-direct examination: “Q. Did yon see which track he traveled on? A. No, he was off the track. He run down the track a little piece, and then got right up next to the car and I couldn’t see nothing of him. Q. Which track did he run down? A. The north track. Q. How far did he travel on that track? A. Must have been five or six feet before he left it. He got off that and run towards the car. Q. When he was on that track, which direction was he traveling? A. Toward the car.” If there is any substantial difference between the testimony of the witness given at the two trials, we wholly fail to discover it.
On the first trial, Mrs. Waterhouse testified that when she first saw the boy he was right on the track with his back to the north, and the сar was coming on; that she thought he was looking toward the car and stooped down to pick up his book and that she looked again and it looked like he was moving across the track, but that he did not get to the middle of the track until the car struck him; that he was just walking right across the track and the car was coming down and he did not make any effort to get away.
On the second trial the witness testified, on direct examination, that when she first saw the boy he was coming do-wn the track looking toward, the car, and it looked as though he had crossed the north track and was right on the other track when the car whistled him off and it looked as though he was going to cross right in front of the car.
On cross-examination, the witness testified as follows : “Q. The car kept coming down the street and this little boy keрt crossing in front of the car? A. Yes sir. Q. He stayed right on the track? A. Yes, sir. Q. Stayed on the track even after the car got to Bird street? A. Yes, sir.” The witness testified at the first
It is not shown that the difference between the witness’ testimony at the two trials was called to her attention at the second trial by the appellant, and no effort was made by appellant to refresh her memory or have her testimony explained wherein it differed. It is a well known fact to every practitioner that it is seldom that the testimony of a witness at different trials is just the same. The stenographer may make a mistake in taking down the testimony, and the witness, not being accustomed to the court room, is more or less confused, and it is not strange that the testimony is not аlways the same.
The question whether a party is entitled to continuance on an affidavit of surprise after pleadings have been amended, rests largely in the discretion of the trial court, which discretion will not be disturbed by an appellate court, unless it has been manifestly abused. [Eastin v. Joyce,
This cause had been once tried, and there.were but few eye-witnesses to the accident, and undoubtedly all these were witnesses on one side or the other. It is one of the governing rules in passing on such a motiоn, to deny it, where the coffrt is not satisfied that a different result would likely ensue on a second trial. [Bragg v. City of Moberly,
It was not claimed in the affidavit for continuance that other witnesses could be procured, or that the testimony given by the witnesses was untrue, but the appellant simply stated: “The defendant believes that if the jury is discharged and the defendant given a contin
The complaint lodged against instructions 1 and 2, is made in the following language: “The appellant contends that рlaintiffs’ instructions Nos. 1 and 2, are. in conflict, and the circuit court committed reversible error in giving both of said instructions, as one authorizes the jury to find for the plaintiff on the ground of negligence of defendant without any negligence on the part of the plaintiffs and asks finding for the plaintiff on the so-called humanitarian or last chance doctrine.”
The Supreme Court in Krehmeyer v. Transit Co.,
In Spencer v. Transit Co.,
Speaking of this instruсtion, Judge Graves said: “We see no error in this instruction. It reiterates the well-recognized humanitarian rule.”
If the decision of this case hinged upon this question, we would be at a loss to know what to do. What is the last decision of the Supreme Court upon the subject? We have an opinion by three judges, dissented from by three judges, and one judge concurring in doubt and a subsequent opinion by him declaring the law as found in the dissenting opinion. This point is a very material one, and is in nearly every case wherein damages are sought to be recovered from a street car company by injuring a child in the street, and it is to be. regretted that the judges of the Supreme Court are unable to agree on a clear and well defined declaration of the law relating thereto.
We do not beliеve the instructions complained of are subject to the. construction placed upon them by appellant. The parts of the instructions necessary to be determined, are as follows: “No. 1. And if you further
Instruction No. 2. “The court instructs the jury that although you may find and believe from the evidence, that the defendant’s motorman on its car mentioned in evidence, sounded the gong, rang the bell or blew the whistle attached to the car, or did all these things and used any or all of the ordinary danger signals in order to attract’the attention of the boy, and] although you may further find from the evidence in this case, that the boy was guilty of negligence in going on the traсk of defendant at the time and place he was killed, yet if you further believe from the evidence that defendant’s motorman in charge of said car, saw or by the exercise of ordinary care could have seen the child on defendant’s tracks, or approaching thereto, with the evident intention of entering thereon or crossing it, in time to have stopped his car or so slackened its speed as to have prevented the injury of said child, and failed to do so and on account thereof the child was struck and killed by said car, then you should find the issues for plaintiffs.”
In our opinion these instructions submitted noth
The court gave the following instruction in behalf of the appellant: “The court instructs the jury if they believe from the evidence that the motorman in charge, of defendant’s car just after crossing Bird street, saw Edward Childress come out of the alley between Bird and Ivy streets, and immediately sounded a warning with ‘ the whistle, and said Edward Childress started east on the north tract, then the motorman had the right to presume that the said Edward Childress would keep on the north track until said car passed him, and had the right to let his car go forward at the ordinary and usual rate of speed for that- place, and if the jury further believe from the evidence that Avhen the motorman discovered, or by ordinary care could have discovered, that Edward Childress was going to attempt to cross the south track in front of the car, the car was so close to said Edward Childress that the motorman, with the appliance at hand and the use of ordinary care, was unable to stop said car in time to prevent it striking said Edward Childress, then your verdict will be for the defendant.”
This instruction is not the law of this case, and should not have been given. It correctly declares the duty of the motorman in dеaling with a person of mature years. A much higher degree of care on the part of a street railway company in the operation of its cars is
This instruction was based on the testimony of the motorman, who testified that when he was at Bird street, he saw the little boy come out from the alley and start in a southeasterly direction across the street; that he sounded the warning and the boy turned east on the north track, and he continued to run his -car, relying upon the boy not attempting to cross the south track, but when he got so close he could not stop his car, the boy turned and started across the track.
It is not necessary to the decision of this case, to comment upon this instruction, but if the men operating >street cars believe that such is the law, they should be otherwise instructed, or cases of this character will be .numerous, indeed, in the courts of this State. The testimony showed that a schoolhouse was located just two blocks north on Twentieth street, and that it was attended by children living on* or near Twentieth street; that the- accident happened at four o’clock in the afternoon, just at the time the children were returning from school, and if this motorman saw this child with his schoolbook in his hand, he undoubtedly must hаve known that he was a mere child, skipping along the street, homeward bound from school.
In 2 Thompson on Negligence, sec. 1424, it is said: “The degree of care which the law demands of the street railway company, especially where it malees use of an underground cable or of an electric wire for the propulsion of its cars, is, no doubt in legal strictness, defined by the Avords ‘ordinary care.’ But the use of this expression, in instructing a jury, would obviously mislead them, in the absence of further explanation, by leading
This declaration of law is cited by our Supreme Court with approval in Hovarka v. Transit Co.,
In Cytron v. Transit Co., the child killed was eight years of age. The accident happened hy a street car killing the infant on a public highway, and that the motorman saw, or could have seen the child coming across the street in the direction of the car track. And in that case the court said: “Both danger and duty began the instant the child left the sidewalk, bound headlong' into peril.”
And so in the case at bar, the motorman saw this boy when he was one hundred and fifty feet west of the alley, and he saw the boy going in a southeasterly direction, so that he was afraid that the boy might reach the south track the same time the car did and be killed, and he gave him a warning. And then the instruction dеclares if this was done and the child turned east on the north track, all duty on the part of the motorman then ceased until the motorman saw that the child was going to cross the south track, at which time it must have been apparent to any one that it would likely be too late to save his life. The law required of the motorman to get his car under control, so that if this child should attempt to cross the south track and drop his school book (as he did) and stop to pick it up, he would not be killed. In other Avords, when the motorman saw this child leave the alley and start across the street in a southeasterly direction, he should have slackened the speed of his car and got the same under control with the brakes ready for instantaneous use, so that if the child Avithout exercising the care of a groAvn person, should have attempted to cross the track, that he would be in a condition to at least greatly lessen the chances of collision. The'instructions were favorable, indeed, to the defendant, and so much so, that if it had recovered a verdict from the jury, a new trial should have been granted.
This brings us to the third and important point in
This suit is based on the amendment of 1905 to section 2864 of our Damage Act, and the question is, whether the court should give instructions telling the jury what things should and.should not be taken into consideration in determining the amount of the verdict. This statute has not been construed by the Supreme Court, but in Potter v. Railroad,
The constitutionality of the act is not challenged, and if it were, we would have no authority to passi upon it. We are, therefore, to accept the statute as amended, as the law of this State. Prior to the amendment of this statute, the courts held that a recovery under the statute must be for the exact sum of $5000 no more or no less. [Casey v. Transit Co.,
In Casey v. Transit Co.,
In King v. Railroad,
The old act read: “Shall forfeit and pay for every person or passenger so dying, the sum of $5000.” The amendment reads: “Shall forfeit and pay as a penalty for every such person, employee or passenger so dying, the sum of not less than $2000, and not exceeding $10,-000 in the discretion of the jury.” Section 4160, Revised Statutеs 1899, requires courts to construe words in their plain, ordinary and usual sense. And courts are not to look for obsolete and remote definitions. [State v. Miller,
As we have above stated, when the act read, “shall
The court will take judicial notice, if necessary, of the facts of contemporary history, in order to properly construe the statute. [State v. Bengsch, 170 Mo. l. c. 111,
It is said that it was not the intention of the Legislature to leave the jury at liberty to roam through the fields of speculation and sympathy in arriving at a verdict, and that such discretionary powers in the jury should not be left without special control by the court under proper instructions. In the more important matter of the liberty of the citizen, the extent of the punishment is left in the sound discretion of the jury. In a criminal case where the punishment is not less than two or more than ten years in the penitentiary, the court does not attempt to tell the jury what things
Indeed, the Legislature of this State, in 1907, provided that in cases of murder in the first degree, it shall be left in the discretion of the jury whethеr the convicted shall suffer death or be confined in the penitentiary for life.
We have been favored with able briefs upon this point by both parties, and a number of authorities have been cited from other States, but an examination of them shows that they are based upon special statutes of those States, and therefore, do not clearly interpret the statute under consideration. But as we study the statute from its language and surrounding circumstances, we do not believe there is much doubt concerning its proper interpretation.
We understand that cases involving the proper construction of this statute are now before the Supreme Court, and we might hesitate to affirm this judgment at this time, in view of this fact, if the point was decisive of this case, but our Supreme Court hоlds that when a party has neglected to ask for an instruction setting out the proper measure of damages, he cannot be heard to complain that the jury were not properly directed as to the amount of the recovery. [Geismann v. Elec. Co.,
The instruction in this case given in behalf of respondents, has been held sufficient in a case under this statute. [Potter v. Railroad,
In determining the amount to be allowed as a penalty, the jury would have the right to take into consideration, all the circumstances of the accident, and allow such sum as a penalty as they should believe to be just and right for the taking of the life of a child in the manner, .and under the circumstances in which it was done. The court, for the reasons above given, was justified in refusing the instruction asked by the appellant.
It is claimed that the verdict is excessive, and we have been cited to several cases in which verdicts in such sums for the death of children of about the same age, have been held excessive, but they were all cases in which the plaintiffs were limited in the amount of their recovery to the pecuniary loss sustained. In this case, the smallest amount allowed, even though no actual damages are sustained, is $2000, and a verdict for $2000 in an ordinary action for damages, prosecuted by the parents for the death of a child of a similar age, would not be held so large as to justify an appellate court in setting aside the verdict when it comes with the approval, not only of the triers of the fact, but the trial court as well.
After a careful consideration of all the questions raised on this appeal, we have come to the conclusion that the judgment should not be disturbed, and it is accordingly affirmed.