205 Mo. 692 | Mo. | 1907
From a judgment against it for •five thousand dollars damages for negligently causing the death of plaintiffs’ eight-year-old son, Morris, on August 27, 1901, the defendant appeals. The case was assigned to Division One. There the judgment was reversed; On a motion for rehearing two of the members of that division dissented. Thereupon it went to Banc.
The case made on the facts, as well as the paper case on issues going to the merits, will be reviewed presently. Putting them aside for the present, there is a question made on the pleadings calling for consideration and determination in limine.
I. The cause was heard below on an amended pe^tition. As originally brought, the father, Meyer Cytron, alone sued. The child was the son of Meyer and Rosie Cytron, husband and wife. Presently, but after one year had elapsed, an amended petition was filed, the amendment consisting in making Rosie Cytron a party plaintiff. Thereupon defendant lodged a demurrer — the force thereof spent on facts disclosed by that amendment, to-wit, the existence of a living mother as
At the close of the case defendant asked and the court refused to give a peremptory instruction. At the beginning of the case defendant objected to the introduction of any testimony because the petition did not state facts sufficient to constitute a cause of action. This objection was overruled — defendant saving timely exceptions to both said rulings. As we see it, it is one or the other of them that defendant now assigns as reversible error, in that by joining Rosie Cytron in the amended petition, the plaintiffs, in effect, instituted a new suit more than one year after the cause of action accrued — all this (it is said) in the teeth of the statute then existing, to-wit, Revised Statutes 1899’, section 2868, reading:
“Limitation of Actions. — Every action instituted by virtue of the preceding sections of this chapter [chapter 17 on Damages, etc.], shall be commenced within one year after the cause of such action shall accrue. ”
To avoid the settled rule (hereinafter pointed out)
But we do not agree with that view. It seems to us that the argument of defendant’s learned counsel proceeds on an over-refinement. The statute in hand is not a span more or a whit less than one of limitation and repose. Its passport as such statute is stamped on its very face, because it is written there that it is a statute with an honest purpose of limitation and repose only. The Legislature, intending it to fill that office, said so in so many words — the subhead of the section reading, “Limitation of Actions.” We ought not to allow that obvious legislative intent to' perish by ¡construction; and by repeated adjudications we have • so construed the statute as to preserve its life. For example, .it has been construed as a statute of limitation merely in Walker v. Railroad, 193 Mo. 1. c. 474, et seq.; Buel v. Transfer Co., 45 Mo. 1. c. 563; Crockett v.
Indeed, it is only by the grace of allowing the averment of the answer, now under exposition, to be taken as a plea of the one-year Statute of Limitations that any life is left in it — or that it has place in an answer. And this is so because, strictissimi juris, in so far as the amendment may.be claimed to constitute a departure, that departure, as such, was waived by answering over (Walker v. Railroad, supra, 1. c. 473; Liese v. Meyer, 143 Mo. 1. c. 556); and, being waived, the right to object to it is gone unless we interpret the plea as a plea of the Statute of Limitations, and, hence, a substantive defense.
Being a statute of limitation, and the question under consideration in final analysis involving the right of amendment after the limitation has run, at the threshold lies the inquiry: “What is the proper judicial attitude toward amendments with reference to the Statute of Limitations?” As said in Walker v. Railroad, supra: “The answer, in the language of Nap-ton, J., in Lottman v. Barnett, 62 Mo. 1. c. 170, is:' ‘Amendments are allowed expressly to save the cause from the Statute of Limitations, and courts have been liberal in allowing them, when the cause of action is not totally different. ’ The rule thus announced is steadily applied. [Lilly v. Tobbein, 103 Mo, 1. c. 490-1; Courtney v. Blackwell, 150 Mo. 1. c. 271-2] ”
In the Walker case a father sued for the negligent death of his son, giving a wrong name. After one year he amended by alleging the right name. It was held the amendment was within the purview of the judicial construction put upon the liberal provisions of our code, citing Revised Statutes 1899, sections 657-8-9, 660, 672, 676 and 865,
In the Buel case the father and 'mother had been divorced. He refused to join her in a suit to recover
The Lilly case was a suit to establish a rejected will, commenced in the name of an unincorporated society. A demurrer was sustained because of the want of capacity of plaintiff to sue. Thereupon an amendment was allowed, after the period of limitation had expired, permitting members of the church to sue .in their own behalf and in behalf of their co-members and substituting them as parties plaintiff. Black, J., in deciding that case, cited with approval the Buel case, Lottman v. Barnett, supra, and Ins. Co. v. Ludwig, 108 Ill. 514, and held the substitution of new parties plaintiff was not the commencement of a new suit.
The Ludwig case is instructive. It points out the distinction to be observed between amending by introducing a new party plaintiff and amending by introducing a new party defendant. The gist of the matter lies in one of the syllabi, viz: “Substituting a party having the legal right to sue, instead of one improperly named as plaintiff, is in no sense the commencement of a new suit, but so far as defendant is concerned the suit will be regarded as commenced at the time of the original issuing and service of the summons. The rule is different where a new defendant is brought into a case by amendment and summons against him.”
In the Senn ease Macearlane, J., said: ‘ ‘ The nonjoinder of the father and mother would not abate the suit, though they were not joined until the period in which suit is required to be commenced, had expired.” [Citing Buel v. Transfer Co., supra.]
The doctrine of the foregoing cases finds support in persuasive authority elsewhere. For instance, Floyd v. Floyd, 90 Ind. 130, was an action to contest a
In Vunk v. Railroad, 56 N. J. L. 395, a husband sued alone for damages arising from trespass on land in which the husband and wife were respectively seized of an entirety. After the limitation period had run the wife was made a co-plaintiff and the amendment was held proper.
Bradford v. Andrews, 20 Ohio St. 208, was a will contestand, quoting from a syllabus, it was said: “Where a proceeding for the contest of a will is commenced within the statutory period of limitation, although only part- of the persons interested in the contest are made parties thereto', the right of action is saved as to all ultimately made parties, notwithstanding some of them are not brought into the case until after the period of limitation has expired.”
In the case at bar, the cause of action under the amended petition was the identical cause of action counted on in the original. It substantially required the same quantum and quality of evidence. The measure of damages was the same under each. The amendment did not substantially change the claim or defense. Hence the general identity of the transaction was pre*
II. For the orderly consideration of other questions it is necessary to note the grounds upon which recovery was sought, the defense interposed on the merits, and the facts uncovered by the evidence.
The petition grounded recovery on; certain acts of negligence taken from the jury by instruction. They need no notice. Other specifications of negligence submitted to the jury are, in substance, that on the twenty-seventh day of August, 1901, the defendant so negligently handled and ran one of its ears on Ninth street, at an intersection named, at a high and dangerous rate of speed, to-wit, between fifteen and twenty miles an hour, through a populous and busy locality and without keeping said car under control and so negligently and unskillfully handled the car as to cause it to run over Morris Cytron as he was crossing the track in front of it, thereby so crushing and wounding bim that he at once died. The petition then pleaded an ordinance well known as the Vigilant "Watch ordinance, alleged a violation of said ordinance in that the motorman in charge of said car negligently failed to keep a vigilant watch for-persons on foot on the track of defendant or moving towards its said car, and-negligently failed to stop said car in the shortest time and space possible on the first appearance of danger to the person of said Morris Cytron, and that his dangerous position could have been seen by the exercise of ordinary diligence, etc. It is averred that the several acts of negligence aforesaid directly contributed to cause said car to crush and kill the child.
Absent all evidence tending to prove the averment of the answer that plaintiffs negligently allowed their child to play about the street in dangerous proximity to passing cars, that issue became by-matter.
The reply was a general denial. '
So much for the pleadings.
Attending to the facts, the case may proceed on the theory that some of them are not in doubt or dispute. For instance, it appears that defendant ran its cars on a single track on Ninth street; that Ninth street ran north and south, is about fifty feet wide, and is cut at right angles by Biddle street — of the same width as Ninth. It is not disputed that plaintiffs are the parents of Morris Cytron; that he was a little the rise of eight years old; that he was killed between eight and nine o ’clock of the morning of August 27, 1901, by hewing run over by one of defendant’s cars; that the car running him down was going north; and that the child was caught by it at or near the north line of the intersection of Ninth and Biddle. It was in evidence on defendant’s part, without any attempted contradiction on the part of plaintiffs, that, commencing south on Ninth at the intersection of a street known as Carr avenue, the grade of Ninth (going north) is sharply downhill— the foot of the grade being at or very close to the south line of Biddle. The car in question was pretty well loaded with passengers. It stopped at Carr avenue to let some off or on. It then came on down the grade
By actual measurement it was shown that between curbs on the south line of the intersection of Ninth and Biddle, Ninth street is thirty feet wide. At that point
From here on the testimony is a wilderness of hopeless conflict; and it may aid the understanding of the case to use the following diagram:
If plaintiffs ’ testimony controlled the jury on this point, they must have believed that from the time the child turned at “0” and (facing east) passed into danger at “D,” he went, say, from fifteen to seventeen feet in plain view of the motorman and heading to
Plaintiffs introduced testimony tending to show that the car crossed the intersection of Ninth and Biddle at a very high rate of speed.. One witness put its speed at twelve to fifteen miles an hour; another at sixteen to seventeen miles an hour; others described the speed by phrases as “awful fast,” or “it went whizzing down,” or it went “pretty fast,” or “just rushed through.” Another witness said: “It was going fast, I couldn’t gauge it with my eye, . . . well, it was running too fast.” Being asked to place an estimate on its speed he put it at fifty miles an hour. Another witness said it was “running just like anything;” another that it went “very fast,” and so on.
On defendant’s side the motorman and conductor put the speed of the car over the intersection of Biddle and Ninth at from five to six miles an hour. One of defendant’s witnesses put it at two and one-half miles. Another put it from seven to eight miles. Another said it was going “very slowly.”
Apposite to' the question of speed there was the same conflict in the testimony touching the distance in which the car stopped after the child was struck. Plaintiffs’ evidence from several witnesses tended to
On defendant’s'side the testimony tended to show, from the motorman, that the car was stopped with its front end forty feet from where it struck the child. The conductor testified he did not see the child before the car struck him; that when the car stopped his body was about four feet to the rear of the car and about three feet north of the crossing, and other proof of the same character was made. Another of defendant’s witnesses testified that the boy’s body was lying forty to fifty feet north of the crossing (i. e., the north line of the street intersection) and that the car was on north still farther, to-wit, the additional length of the car, say, twenty-eight or thirty feet.
One or two of plaintiffs’ witnesses described the gait of the boy as “running.” Some said he was “walking slow.” Some said he was going neither slow nor fast, but “just like a boy would,” or like an “American boy will.” On defendant’s side, to the contrary, the evidence makes the boy go very fast. The motorman testified he was going “three times faster than the car was running.” One witness speaks of the boy as “shooting out,” another as “darting out.” One spoke of him as making jumps towards the car. Another said he was running at “breakneck speed.” Another concluded Morris had been playing marbles and had grabbed his playmate’s marbles and was making off with them and was being chased diagonally across the street.
On behalf of plaintiffs, evidence went in tending to show that the speed of the car was in no wise slackened before it struck the boy and that no effort whatever was made to slacken the speed. One witness gave it as his judgment that the child got on the track from ten to fifteen feet in front of the car. Another of plaintiffs’ witnesses says “it might have teen a distance of at out thirty feet.” On the other hand, the motorman says the boy got on the track two feet before the ear; and testimony was introduced tending to show that every possible effort was made to stop the car after that.
Some of the witnesses on both sides did not have their attention called to signals; but the proof strongly tended on plaintiffs’ side to show that no alarm signal was given, nor was the gong sounded while the ear was crossing the intersection of Biddle and Ninth, or, to put it otherwise, while the boy was heading directly towards the track and into danger. On defendant’s part the testimony, from those witnesses who testified on the point, was to the effect that the motorman gave the usual crossing signals for the crossing as he approached and passed over the street intersection and also gave an alarm signal — operated by his foot. It may be well to look closely into the testimony of Davidson, the motorman, because it is on that testimony error is predicated on the refusal of a certain instruction. He said partly in chief:
“A. This trip, and as I reached the south crossing at Biddle street and seen everything clear, I let off my brake, which spins around considerable, and throw-ed her onto five points. Just as I got her onto five points here a boy come out from the south — southwest corner, right off the curb, and before I could cut it off and get my brake he was in the center of the track.
On cross-examination, Davidson testified he always slowed up at Biddle street to avoid coming in contact with people and vehicles; that he had to do that at every crossing; that he had come down the grade from Carr to Biddle slowly that morning; that the car was six minutes late; that when a car was late the motorman is “supposed to make a certain percentage of the time . . . and only runs safely to do so;” that he had a good hand-brake; that he was a large-,' strong man and weighed two hundred pounds; that he did not use the reverse; that the use of the reverse might “slide” the car “and might knock out the overhead,” or “you would blow the fuse,” and one would have to fall back “on the hand-brake, then, afterwards to make the stop;” that he, Davidson, had been in the business for years and was experienced and gave it as his opinion that the hand-brake is the proper thing to use in order to make a quick, sure stop; that his car going at five or six miles an hour could not be stopped in less than forty feet when the brake was let off; that in the condition his car was in that morning, to-wit, with the brake just let off, the car couldn’t be stopped within forty feet. We infer the slack of the brake had to be taken up; and the witness described his effort and ability to stop as follows:
“A. In the condition that everything was there, with the brake off and so forth, it couldn’t be stopped in less than forty feet with any kind of an appliance; that is, with a hand-brake, I tell you, for the simple reason when the brake is plumb off a thing jumps up before you, two turns and a half of a brake will take you two and a half seconds; five or six miles an hour will take you ten feet a second, and before you get the shoes in connection with that wheel you will go- thirty
“Q. As a matter of fact, when you saw this boy, he was then right in front of the car? A. Yes, sir; right practically on the track, and if he had been half a second sooner he would have been over the track.
“Q. And as soon as you saw him there in front of your car you at once made all effort to stop it? A. I applied the brake to stop it, yes, sir.”
■Continuing, the motorman said there was no difficulty in seeing a boy or anything else approaching the track at the street intersection, and there were usually a great many people about those corners and that was why he went slow. On re-examination he drew a diagram making a diagonal mark to indicate the direction Morris took in approaching the track; and added: “And the boy never saw the car until the thing struck him, I don’t believe; never heard the bell or anything.”
Plaintiff put in evidence the Vigilant Watch ordinance, the terms of which have been spread so often in our reports that they may be assumed as known. [Deschner v. Railroad, 200 Mo. 1. c. 324.]
On this record defendant’s learned counsel assign error both in the giving and refusing of instructions. Of these in their order.
(a) The instructions of plaintiff are lengthy and the opinion need not be swelled by inserting them, totidem verbis. Among other things in the first instruction, the jury were pointed to the settled rule in judging of the alleged contributory negligence of the infant, Morris, as formulated by this court. [Holmes v. Railroad, 190 Mo. 98.] That instruction is not criticised by defendant.
In the second instruction the jury were told that if they found from the evidence that in view of such surrounding conditions at the crossing and such frequency of travel there, as they may find from the evidence to
By plaintiffs ’ third instruction the jury were told that if they found from the evidence that Morris was killed at the crossing by one of defendant’s cars and found that defendant negligently ran its car at a rate of- speed which was high and dangerous and at a rate at which a motorman of ordinary care and prudence would n'ot have run his car in view of the conditions as to frequent use and occupancy of said street by persons, as the jurors may find and believe from the evidence said conditions to have existed at the time, and that by reason of said dangerous rate of speed the child was run over and killed, and found that his death was directly caused by such negligent speed and found from the evidence that if the car had not been run at such dangerous rate of speed, but at a rate which the jurors may find and believe from existing conditions and surroundings would have been a safe and proper rate of speed, said accident would by the exercise of ordinary care on the part of the motorman in handling and stopping the car have been averted, then (in
By plaintiffs’ fourth instruction the jury were told, among other things, that if they found and believed from the evidence that the motorman was not keeping a vigilant watch for all persons, especially children, either on said track or moving towards it, or that said motorman, upon the first appearance to him of danger to Morris did not stop said car in the shortest time and space possible under the circumstances, consistent with the safety of the passengers and by the use of means at hand and under his control, and found from the evidence that paid motorman by keeping such vigilant watch would have seen said child on said track or moving towards the same and in peril of being run over, and if by the exercise of ordinary care by so stopping said car in the shortest time and space, etc., under the circumstances and consistent with the safety of the passengers and by the use of the means at hand and under his control, he could have saved the child, and if the jurors further find and believe from the evidence that the failure to keep such watch or the failure to stop said car as aforesaid was the direct cause of the death of the child, then your verdict shall be for plaintiff (unless you find the child or its parents were guilty of contributory negligence as elsewhere defined). We find no fault with this instruction. The rule of law announced by it was but the application of the Vigilant Watch ordinance to the case and has been again and again approved by this court when applied to the facts in judgment.
(b) Defendant, among others, was given the following instructions:
“If the jury find from the evidence that plaintiffs’ deceased son was of sufficient .age and discretion to understand and know the dangers incident to crossing street car tracks in front of moving cars, -and shall further find from the evidence that said deceased went'upon defendant’s track in front of a moving car, without looking or listening for the same, at a time and place when and where, by the exercise of that degree of care that an ordinarily prudent person of like age and discretion would be expected to use under the same or similar circumstances in looking or listening for defendant’s ear he could have seen or heard the same in time to have avoided collision with it, then plaintiffs cannot recover in this action and your verdict will be for defendant. ’ ’
And defendant assigns error in the refusal of two instructions, viz:
4. “If the jury find from the evidence that the death of plaintiffs’ deceased infant son was caused by
5. “If the jury find from the evidence that plaintiffs’ deceased son passed suddenly upon defendant’s track in front of its car and so close thereto that it was impossible for the motorman in charge of said car .to stop the same in time to avoid collision with the said deceased, then plaintiffs cannot recover in this action and your verdict will be for defendant.”
There was no error in refusing defendant’s instruction numbered 4. Every principle of law applicable to the concrete facts, singular to the case, and relieving defendant from liability because of the contributory negligence, if any, of the child, had been given to the jury in plaintiffs’ instruction number 1 and in the last one of defendant’s instructions. [Mullin v. Railroad, 196 Mo. 572.] The refused instruction merely shaped the matter up in another form and did so by using a terminology well calculated to litter up the minds of the jurors and steer them afield or confuse them. When a proposition of law has once been fairly formulated and given, to turn about and couch it in' a different and more learned phrase, is but tending to create darkness, to obscure the issue by a too great wealth of words, as many leaves conceal the apple on the bough. Twelve plain men in the box might well conclude that the refused instruction formulated a different proposition of law than the proposition embodied in other instructions given, and, in assigning it any office, whatever, might be caught in a net and tripped up, assigning it a wrong one.
Nor was there error in refusing defendant’s in
It ignored every, element in the case leading up to the death of the child except the one incident of his getting on the track so close to the car that it could' not thereafter be stopped in time to save his life, viz:
. It fetched an unfairly narrow compass in circumscribing the field which the jury should explore in coming to a just and humane conclusion.
It ignored entirely the negligence of defendant.
It wiped out the Vigilant Watch ordinance as with one stroke of a sponge.
It denied to the jury the right to consider the fact that the car may have been run at a negligent speed under existing conditions and environment (of which there was much evidence), and that inability to stop might have been caused by that fact.
It told the jury not to consider the evidence tending to show that no bell was rung or warning given to the child, whereby he might have been kept off the track. The motorman knew his car was bound to occupy, with crushing force, the very spot the child’s steps were directed to. It was obvious to the mortorman that the child did not know that fact. Under such circumstances, if means of notice were at hand (as they were) notice was demanded by the law. [Hinzeman v. Railroad, 182 Mo. l. c. 628, et seq.; Deschner v. Railroad, 200 Mo. 1. c. 331, et seq.; Wise v. Railroad, supra.]
It took the jury’s mind away from defendant’s evidence tending to show that its motorman voluntarily gave up control of his car at the foot of a sharp grade, that he let go of and thereby turned off the brake, that he was feeding his power at the critical instant of crossing the intersection of two streets at a thickly-settled and busy part of the city where persons have the right to be and were expected to be and' where questions of life and death might be reasonably forecasted
It told the jury to blink the fact that the child either walked, say, 15 feet directly to and then on the track under the eye of the motorman and into death (as testified on plaintiffs ’ behalf); or else ran diagonally, say, twenty or twenty-five feet, headed for the track and evidently bent on crossing it, as testified by defendant’s witnessess. Both danger and duty began the instant the child left the sidewalk, bound headlong into peril. [Bunyan v. Railroad, 127 Mo. 1. c. 21, et seq.]
That instruction took the life out of both the other instructions given for defendant, and, if given, would have made them so much waste paper. It was not supported by defendant’s own testimony.
If given, in effect, it would have declared the law to be (when read in the light of the facts of this case), that the smaller the care and caution, the less the liabil
The case was well tried. The judgment meets our approval. Accordingly, it is affirmed.