174 Mo. App. 45 | Mo. Ct. App. | 1913
William Steinbrink, an unmarried minor, fifteen years of age, whose parents were dead, was injured by one of defendant’s street cars striking and overturning a grocery wagon in which he was riding. He died as a result of his injuries, and his executrix instituted this suit under section 5425, Revised Statutes of Missouri 1909. She obtained judgment and defendant has appealed.
The lad had started to work that morning for a grocer, and, in company with Bert Hosman, a man who drove the grocer’s delivery, went to a livery stable to get the horse and wagon with which groceries were delivered. This stable fronted west immediately on the property line on the east side of Indiana, avenue in Kansas City, Missouri, and was 223 north of the intersection of - said avenue with Twenty-sixth street. The stable floor was higher than the sidewalk, and a runway sixteen feet in length extended from the floor to the street at the curb. Down this runway vehicles were driven in leaving the barn.
Indiana avenue was forty feet wide and the east track of defendant’s car line was twenty-two and one-half feet from the barn ■ entrance. When Coontz, the stable hand, had harnessed the horse to the wagon, Hosman took the driver’s seat, and with, the boy either sitting beside him or standing in the wagon behind and holding to the seat, drove down this runway to the street.- The wagon had almost cleared the track
Prom Twenty-sixth street north it was down grade on Indiana avenue, and at a point twenty-five feet north of said street and 198 feet 'south of the livery barn was a “safety stop” which required all north bound cars to make a stop at that point before proceeding further. ■ -
The negligence charged was that the car was being run at a dangerous rate of speed in excess of twenty miles per hour and in violation of an ordinance limiting the speed'to that rate; also that no safety stop was made at the point required, and that the operator of the car saw, or, by the exercise of ordinary care, could have seen, deceased in a perilous situation in time to have stopped or slackened the car with safety to the passengers and avoided the injury, but that he negligently failed to do so. The answer was a general denial and a plea of contributory negligence on the part of the driver and of deceased in driving rapidly from the barn to the track without looking or listening for the approach of a car and so close in front thereof as to render a collision unavoidable.
< Appellant’s first point is that no proof was made that deceased was an unmarried minor. But the record shows'to the contrary, so the point is valueless.
■ The next point is that deceased was guilty of contributory negligence in riding rapidly down the runway without looking .or listening for a car. This renders it necessary to determine at the outset what negligence can be charged against the deceased as being contributory so as to- bar a recovery.Under the peculiar circumstances of this ease, the negligence that would bar a recovery must be that- of the deceased himself, not that of Hosman, the driver. The deceased was a mere lad. He had no authority over the driver nor control over the management of the horse or
Coontz’s testimony was by deposition. At the taking thereof he was asked by defendant if he had not made a statement to defendant’s claim agent concerning the accident and said that he had. He was then shown his signature to a paper and identified it as his, but was not allowed to see or read the contents thereof which had been written by the claim agent, and which the witness signed without reading. Neither was his attention called to the fact that the statement contained an allegation that he (the witness) was in the harness room and did not see the accident. At the trial, defendant offered in evidence this written statement to contradict Coontz’s statement in his deposition that he was standing in the door of the stable and saw the whole occurrence. The paper was properly excluded as the attention of the witness was not called to the inconsistent statement therein. The witness was not a party to the suit jnd before he could be contradicted by the introduction of a written inconsistent statement, a foundation should have been laid
Complaint is made of the refusal of defendant’s instruction “A” which sought to eliminate the charge that the car did not stop at the “safety stop” as one of the causes of the accident. The ground of this complaint is that there was no evidence that the car failed to make said stop. But while there is evidence .that it did make said stop, there is also evidence from which the jury could find that it did not stop. • Hence the refusal of said instruction was not error.
Defendant’s instruction “B” was also properly refused since it told the jury that excessive speed of the car would not authorize a recovery unless it was the sole cause of the injury. Excessive speed of the car did not have to be the sole cause of the collision. If such speed combined with the failure of the motorman to keep watch and stop or slacken the car caused the collision, defendant would be liable.'
Defendant prayed mstruction “C” which was refused, and error is claimed. The instruction is as fol-. lows:
This instruction does not clearly and correctly dif-' férentiate between the negligence of the driver and the boy, but is so worded as to . lead the jury to believe that the driver’s negligence should be considered along with that of the boy’s and that the boy was in some way connected with and affected by the driver’s negligence. But, unless the boy was ■ himself negligent, there was -no contributory negligence in the case. He had a right to assume when he got into the wagon and started down the incline that, if a car approached, it would do so at a lawful and not an unlawful rate of speed. He had no means of guarding against the approach of a car at an excessive speed, and on opportunity of keeping off the track after its excessive speed could have been discovered, nor of anticipating negligence on the part of the driver. Nor can contributory negligence be inferred against him because the horse may have been driven rapidly down the runway by Hosman as testified to by the motorman. The distance the wagon had to go to get on the track was only twenty-two and one-half feet and that down an incline. In going that short distance the boy would have no opportunity to save himself or to warn the driver after they had started. And when the start was made he had no opportunity to know that the approach would
Defendant’s instruction saying that defendant was not liable if the death was caused solely by an unfortunate accident, if it had any place, in the case, was misleading since there was no explanation or definition of what was meant by the term accident. Again, the instruction was not applicable to the facts in the case as it ignored the real issue, namely, the presence or absence of care on the part of defendant. It was, therefore, properly refused. [Zeis v. Brewing Assn., 205 Mo. l. c. 649-50.]
An instruction was also refused defining burden of proof as meaning that “the facts and circumstances in .behalf of plaintiff must be so clear and strong as to admit of no other reasonable conclusion than that the death of deceased was caused by the negligence of defendant.” The court refused this and gave the
The judgment is affirmed.