165 Mo. App. 287 | Mo. Ct. App. | 1912
This is a suit for damages accrued to plaintiffs under the statute, on account of the wrongful death of their infant child, through the negligence of defendant. Plaintiffs recovered and defendant prosecutes the appeal.
Plaintiffs are the father and mother of Willis Compton, who came to his death when aged between five and six years, through being run upon by defendant’s car on a public crossing at Greenwood, in St. Louis county. It appears that the crossing involved is not parcel of a public platted street but was constructed across defendant’s railroad by it as a continuation of Sutton avenue, which terminated immediately adjacent to the north side of defendant’s right of way. At the place where plaintiffs’ child was run upon, defendant maintains and operates two railroad tracks, side by side, which run east and west. Sutton avenue runs north and south and terminates at the north side of defendant’s right of way,' and Greenwood avenue runs east and west, immediately along and adjacent to the south side of defendant’s right of way. To the end of affording communication as a highway between these two streets, defendant constructed a crossing for wagons and teams on its tracks, and erected thereat a large sign of the usual type, bearing the words, “Railroad Crossing.” The crossing is constructed of three-inch planks, securely laid between the rails and adjacent thereto for the full width of the tracks and about a foot outside thereof where it is joined by approaches constructed of macadam from Sutton avenue on the north and from Greenwood avenue on the south. It is in evidence and, indeed, conceded that this crossing has been used by the public generally for as much as six years. The crossing so
The evidence for plaintiffs tends to prove that their son, Willis, aged between five and six years, was upon the crossing and the plank portion thereof, walking northward to the intersection of Sutton avenue, when one of these empty coal cars was thrust upon him and occasioned his death. The coal car which was run upon the child was situate immediately west of the crossing on defendant’s track, so that the east end of the car was about six or eight feet west of the west side of the crossing. Defendant’s swithmen, consisting of a foreman and four men, were engaged in switching at the time with a locomotive engine. As the locomotive came from the westward to pick up the three empty coal cars, it collided therewith with such force as to precipitate the car next to the crossing upon plaintiffs’ child and occasion his death. It appears no lookout or observation for persons upon the crossing whatever was made by defendant’s servants and no warning was given to the effect that the car was about to be suddenly moved forward.
It is argued, first, that the court should have directed a verdict for defendant because of the failure of the proof to show that the little child was upon the crossing at the time. For defendant, two witnesses testified that they did not see the child on the crossing but saw him in mid-air, falling from the car toward the crossing simultaneously with the collision of the locomotive with the car which thrust it forward.- In other words, it is the theory of the defense that the child was not upon the crossing at the time, but instead had climbed on the end of the empty coal car, and was in that position when he was precipitated to his injury by the impact of the collision. The argument is, that because two witnesses, who are not point
It is argued, though the child was upon the crossing, defendant owed no duty in the circumstances of the case to make observations for him or give warning before moving the car backward thereon. It is said the train was not running with a purpose to cross the highway at the point of the injury and therefore, the law east no duty upon defendant to make observations or sound a warning for those on the crossing. Obviously, the proposition is an unsound one, for the law requires the exercise of ordinary care at all times for the protection of persons who are rightfully upon the tracks, and such care is to be ascertained and determined in the circumstances of the particular case. It may be conceded that the statute imposed no obligation here, but the case proceeds as at common law, and no one can doubt that it was defendant’s dnty to
Plaintiffs’ first instruction is as follows: “The court instructs the jury that if you believe and find from the evidence in this case that Willis Compton was at the time of Ms death a minor, and unmarried, and that the plaintiffs are husband and wife and the father and mother, respectively, of the said Willis Compton, and that the defendant is and was on the 23rd day of September, 1908, a railroad corporation
The defendant levels a criticism at this instruction and says that it is erroneous in submitting to the jury the question of the crossing at Sutton avenue being a public highway. For a complete understanding of the question, we have italicized the words “a public highway” in the instruction above copied. The evidence is, that Sutton avenue is a public highway,
This instruction is criticised, too, because it is said it permits a recovery if Willis Compton was “near to or upon said track” at the time he was injured. By reference to these words, which we have italicised in the instruction, and their context, the full meaning may be understood. As to the question thus
Plaintiffs’ instruction on the measure of damages is as follows: “The court instructs the jury that if you find a verdict in favor of the plaintiffs you should award them such sum as in your discretion you may deem proper, under the circumstances in evidence, but not less than two thousand dollars and not exceeding ten thousand dollars.” The suit is for the penalty stipulated in section 5425, Revised Statutes 1909, which authorizes a recovery of not less than $2000 nor exceeding $10,000 “in the discretion of the jury.” The argument is, that the instruction is improper, in that it authorizes a recovery “in such sum as in your discretion you may deem^ proper, but not less than $2000 or not exceeding $10,000.” This argument omits to reckon with the fact that the instruction also requires the jury to exercise its discretion and fix the amount of recovery as it deems proper “under the circumstances in evidence.” Obviously, the instruction is sufficient. It is correct enough in its general scope, for it required the jury, in fixing the amount of the recovery, to do so within the limitations prescribed by the statute and to exercise its discretion in a proper manner under the circumstances in evidence. Where plaintiffs’ instruction on the measure of damages submits no erroneous element of recovery and is correct in its general scope, it should