81 Mo. App. 471 | Mo. Ct. App. | 1899
The charging part of the petition is as follows: “Plaintiff further alleges that on the 6th day of November, A. D., 1898, about the hour of six (6) o’clock p. m., whilst he was crossing Eranklin avenue at Thirteenth street, going from the south of said street to the north thereof, and whilst between the tracks upon which defendant run3 its ears, he slipped and fell, and before he could recover himself, the defendant, by its agents, servants and employees, who were then and there in charge of and running one of defendant’s cars west on said Eranklin avenue, so carelessly and negligently managed and conducted the same as to strike and run over plaintiff, cutting off his left arm and wounding him severely on the top of his head and otherwise severely cutting, bruising and injuring him.
“Plaintiff further alleges that his- said injuries were the direct result of the negligence, unskillfulness and carelessness of the agents, servants and employees of defendant in charge of said car whilst running, conducting and managing said car.
“Plaintiff further alleges that by Chapter XXXII, Article VI, section 1275 of the Eevised Ordinances of the City of St. Louis, Mo., which was in force at the time mentioned herein, and by the provisions of which defendant agreed to be governed in order to obtain its right to use the streets of said city, it is provided and enacted as follows:
“ ‘Section 1275 — Street Cars — Eegulation for Eunning. —The following rules and regulations concerning the running of street railway cars shall be binding upon every person, corporation, company or copartnership taking out license under this article.’
“Fourth. ‘The conductors, motormen, gripmen, driver, dr any other person in charge of each car, shall, keep vigilant watch for all vehicles and persons on foot, especially children, either on the track or approaching toward the track, and on the first appearance of danger to such persons or vehicles, the car shall be stopped in the shortest time and space possible.’
*476 “Plaintiff further alleges that defendant’s motorman, conductor and driver in charge of said car negligently failed to observe the requirements of such ordinance, in that they, nor any one of them, did not lceep a vigilant watch for all persons on foot, especially children, either on the track or moving towards the track, and did not, on the first appearance of danger to the plaintiff, stop the car in the shortest time and space possible, but on the contrary, ran the said car at a high degree and unlawful rate of speed, without attempting to slacken same at the time and just before striking plaintiff.
“Plaintiff further alleges that the defendant’s said servant did not ring any bell or sound any alarm whilst approaching said crossing just before striking and injuring plaintiff.
“Plaintiff further alleges that by reason of the negligence of defendant’s said servants, agents and employees, he has been greatly maimed, injured and mutilated, and has suffered great pain of body and mind, and has been permanently disabled and disfigured for life, all to his damage, in the sum of twenty thousand ($20,000) dollars.
“Wherefore plaintiff prays judgment for the sum of twenty thousand ($20,000) dollars and cost of suit.”
The answer was as follows:
“Now comes the defendant in the above entitled cause, and for answer to plaintiff’s petition therein, admits its corporation and business as therein stated, and denies each and every other allegation in plaintiff’s petition contained.
“And for further answer defendant says that if the plaintiff received any injuries at the time stated in his petition, they were the direct result of his own negligence and recklessness in running upon the railway track immediately in front of a car which he could have.both seen and heard approaching, and defendant prays to be hence dismissed with its costs.”
About 6 o’clock p. m. on Sunday the sixth of November, 1898, the plaintiff was playing with a little boy on the side
Plaintiff further testified that he was on Eranklin avenue before the accident and lived, only a block away, and that electric cars had been running on that street about seven years, and that he knew that they “ran pretty fast.” His mother testified that he was fifteen years old the first day of March preceding the accident; that he was physically strong and had a good mind.
Erank Pringle, the boy who called plaintiff across the street testified in substance as follows: “I am twelve years old. Between five and six o’clock on the evening of the accident I was playing marbles with the plaintiff at 13th and Wash; then we went from there to a cigar store on the south side of Eranklin avenue between High and 13th street; I bought a French harp there and I played it. awhile; then I started home. I went across the street and he staid on the south side. He was playing there with a boy, and when I got on the north side of the barber shop I called plaintiff and he answered, and I told him I was going home, and he said, ‘all right;’ then he started on over, cat-a-cornered, towards North 13th street, and when he got between the car tracks he stumbled and fell, then the car hit him and threw him upon the fender, and he fell off on the south side of the car, and the car went about twenty-five feet ahead of him and stopped. The car was going at full speed. I heard no signal or bell. I didn’t go to him. I went home and told his mother. When he was going across Eranklin avenue he was going cat-a-cornered towards the west. When this accident occurred it was dark, and it was cold and moist. After I came back from the south side of Eranklin avenue I stopped on the north side two or three minutes, when I hallooed to him to come on, that I was going home; he came running across. I didn’t halloo to him look out for the car. I never seen the car. I
Tbe testimony of other bystanders corroborated tbe foregoing testimony of plaintiff and Pringle, and further tended to show that tbe car passed from twenty to twenty-five feet beyond where plaintiff was run over before it stopped, and tended to prove that tbe motorman made no effort- to stop tbe car, until plaintiff had fallen on tbe track; also that tbe bell was not rung. Tbe ordinance mentioned in tbe petition was read in evidence. Eor defendant it was shown that High street, where plaintiff testified be saw tbe car stop to let off passengers, was 146 feet from South 13th street. John W. Rule for defendant testified in substance as follows: “I was the conductor of this car; I was on tbe rear platform; tbe first I knew of tbe accident was tbe sudden stopping of tbe car; before I felt anything like tbe car stopping, tbe car was running at about from six and one-half to seven miles an hour; when I felt tbe sudden- stopping I looked out on tbe right hand side of tbe car to see what the trouble was, and I saw nothing; then I looked to the left band side of tbe car, and tbe boy passed tbe end of tbe platforih, and be circled a little bit and fell about fifteen feet behind tbe car; I stepped off and tben came to tbe boy, and I and two other men started with bim to a doctor, and tbe car went on by to tbe 14th street crossing; at tbe doctor’s I asked tbe plaintiff, 'How did
Ourtis H. Mayhan testified as follows: “I was the motorman on the car that had the accident with this boy. Just before the accident, when I first saw the boy, the car was running at about seven miles an hour. I was standing on the front platform, with one hand on the controller and the other on the brake lever. I was looking forward at the track, keeping a -sharp lookout and having the whole street in my view, as far as I could. The first thing I seen of the boy was he came from the south side in a diagonal direction across the street on a very fast run. (The witness illustrated how the boy came running across the street, and the position the car was in.) As he came on the side of the ear so I could see him, he was coming on a fast run. As soon as I caught sight of the boy, I threw off the power and reversed my car. In the direction he was going I seen it was impossible for bim to make it across the track. I hallooed to him and checked my speed to save him, if I could, from being run over. He came around in front of the car, between five and seven feet, leaning forward and running very fast; fell right in 'the center of the track. When he fell my car had not stopped. The left-hand corner of the fender caught him, and he fell on the south corner of it, and it pushed him entirely off to. one side of the track. The car then went on, and, in passing him, I felt a jar, and I knew the car had passed over some part of him. The car stopped and I stepped over to the left side of the platform and looked down the side of the car, eastward, and-at the time the boy was a little east of the front truck. The car was then standing still. The boy was then in the act of getting up, and he got up and ran down along the side of the car to the rear end as if he was going to turn around
Robert McCulloch, general manager of defendant, testified that “Appliances on a car to stop it, are the brake, the ordinary appliances, and the reverse motion. When reversing, first ‘the power has to be thrown off, then the reverse
At the close of plaintiff’s evidence, and at the close of all the evidence defendant offered an instruction that plaintiff could not recover, both of which were refused. The court at the instance of plaintiff gave to the jury the following instructions, which (appellant contends were erroneous, to-wit:
1. “The court instructs the jury that it was the duty of the motorman of defendant’s car to keep a vigilant watch for persons on foot, especially children, either on the track or moving towards it, and on the first appearance of danger to such persons to stop the car in the shortest time and space possible; and if the jury believe, and find from the evidence, that the plaintiff, Allan Day, was either on the track or moving towards it, and that the motorman of defendant’s car would have seen him in time to have stopped the car and prevented the injury to said Allan, if he kept a vigilant watch, their verdict should-be for the plaintiff.”
2. “Any motorman in charge of a car propelled by means of electricity upon a public street, is bound to anticipate the presence of other vehicles and pedestrians in such street. The law requires that a person so in charge of an electric car should be watchful to see that the way is clear in the direction he is moving, and that he should regulate the speed at which he is moving, and, if, under all the evidence
3. “The jury are instructed that the plaintiff was bound to exercise only such care and prudence as might reasonably be expected of a boy of his age and capacity under similar circumstances, and that the same degree of care and prudence in avoiding danger is not required from a person of tender years and imperfect discretion as from a person of mature years and great discretion under similar circumstances, and if the jury believe from the evidence that plaintiff was at the time of the accident of about the age of fifteen years, they may take that fact into consideration in considering the question of negligence or carelessness on the part of plaintiff.”
4. “The court instructs the jury that, notwithstanding you may believe from the evidence that Allan Day was playing at, near, or on the track, yet if you further believe that the motorman of defendant’s car, by the exercise of reasonable care, could have seen him, and the car could have been stopped by the motorman by the exercise of ordinary diligence and skill, with safety to himself, the car, and those on the car, in time to have averted the injury to said Allan Day, your verdict should be for the plaintiff.”
5. “The court instructs the jury that, even though you should find from the evidence that the plaintiff, Allen Day, was guilty .of carelessness or negligence, which contributed directly to his receiving the injuries, yet, if you further find and believe from the evidence that, before the accident and after the motorman of the car discovered, or might by the exercise of reasonable care on his part, have discovered the danger in which plaintiff was, he, the said motorman, could, by the
The court gave five instructions for defendant, and refused the following: “The court instructs the jury that there is no evidence tending to prove that the defendant is amenable to the provisions of the ordinance read in evidence, and therefore the court withdraws the same from the consideration of the jury.”
“The court instructs the jury that there is no evidence tending to prove that the ear was running at an unlawful or negligent rate of speed, at or before the accident, and therefore the jury are instructed that that question as to an unlawful or negligent rate of speed is withdrawn from their considera-tion.”
Instruction number 1 given for plaintiff is hypothecated on the city ordinance set forth in the petition and read in evidence. There was no evidence that defendant had agreed to this ordinance. Respondent’s contention that the answer admits that appellant had agreed to the ordinance, is not borne-out by anything found in this answer. In the absence of proof that the appellant had agreed to it, the ordinance was not binding on appellant, and the instruction should not have been given, and instruction number 8 asked by appellant and refused, should have been given. Sanders v. Railroad, 147 Mo. 411; Byington v. Railroad, 147 Mo. 673. Of plaintiff’s second instruction it is sufficient to say it is inapplicable to the facts in this case. There is no evidence that there were vehicles in the street at the time and place of the accident'; the injury was not to a vehicle or to a person in a vehicle nor to a person whose view was obstructed by a vehicle; nor is there any evidence that the car was run -at a negligent rate of speed. The testimony was that it was running at a speed of from seven to eight miles per honr. No witness testified that this was an unusual or a dangerous ralt-e of speed, nor to
The court over the objections of the defendant, permitted plaintiff’s counsel to cross-examine the conductor as to a rule of the railroad company, requiring conductors to take names of passengers o-n his car when an accident-occurred, and then to inquire of him if he complied with the rule on the occasion of the injury to plaintiff. There was no issue in the case to which this evidence was at all relevant, and the purpose of its admission is not perceptible. "We can not say that it prejudiced the jury, but it was wholly useless and should not have been admitted. Taking the testimony as a whole and allowing the jury (which is their right and privilege) to believe parts of it -and to disbelieve other parts, there was evidence in our judgment sufficient to authorize the submission of the case to the jury.
For the errors above noted, the judgment is reversed and the cause remanded.