13 Mo. App. 352 | Mo. Ct. App. | 1883
delivered the opinion of the court.
The plaintiffs bring this action to recover damages for the death of their minor son Charles A. Eckert, a lad about sixteen years old, who was run over and killed by the cai’s of the defendant on the 7th of October, 1881, within the limits of the city of St. Louis. The case was tried by a jury, and the plaintiffs had a judgment for $5,000, the statutory damages.
The plaintiffs offered testimony tending to show that about eight o’clock of the morning of the day in question, the deceased was walking northwardly along one of the tracks of the defendant’s railway, between Bryan and Harney Streets, in company with another young man named Bergman ; that at the place of the injury there were three parallel railway tracks ; that, when first seen, the deceased and Bergman were walking northwardly on the eastern track, the track nearest the Mississippi River, upon which a pas
An ordinance of the city of St. Louis was proved in evidence, regulating the manner of running railway trains within the limits of the city, which provides, among other things, that “ when moving, the bell of the engine shall be constantly sounded within said limits; and if any freight car, cars, or locomotives, propelled by steam power, be backing within said limits, a man shall be stationed on the top of the car at the end farthest .from the engine, to give danger signals; and no freight train shall at any time be moved within the city limits without it be well manned with experienced brakemen at their posts, who shall be so stationed as to see the danger signals and hear the signals from the engine.”
The plaintiffs also introduced Philip Busse as an expert, who stated, in substance, that he,was a machinist; that he .'had been engaged for many years in building engines ; that he had run-engines on trial trips two miles or more; that
The court permitted the plaintiffs to show that persons were in the habit of walking on the railroad tracks at and near the place of injury. It is objected that this evidence was incompetent and misleading, and that it had no tendency to show that the deceased was rightfully on the track when struck by the train. We do not see any error in admitting it. There are places in cities where the relation of railway tracks to the public highways and to surrounding buildings is such that people will necessarily and lawfully go upon the tracks in considerable numbers at frequent intervals. In such situations it is manifestly incumbent upon those in charge of railway trains to be more vigilant in the running of their trains, because there is more danger to human life there than at other places. The degree of care which it is the duty of such persons to use is in direct proportion to the danger to others which the running of their train may produce; and hence, the evidence here admitted was competent upon the question whether the servants of the defendant in charge of the freight train were exercising, at that point, that reasonable care which the law required of them.
The testimony offered by the defendant need not be gone into in detail. It is sufficient to say that it tended to prove
We do not think it necessary to set out at length the numerous instructions upon which the court submitted the case to the jury. These instructions presented the case in a view quite as favorable to the defendant as the state of the law will warrant. This will appear especially clear, when it is noticed that the court concluded the instructions given at the request of both parties, by giving the following instruction of its own motion: “If the jury believe from the evidence that the injury to the deceased son of plaintiffs was the direct result of his own want of ordinary care and prudence, such as a person of ordinary care and prudence should have exercised, the jury should find for the defendant, even though the jury may believe that the men employed by defendant in charge of the train, did not use ordinary care and prudence in managing said train.,r
The objections to the instructions as given and refused resolve themselves into the two following: (1) That the court should, as requested by the defendant, have directed the jury, that upon the pleadings and evidence the plaintiffs could not recover; (2) that the court should have directed the jury, that the plaintiffs could not recover unless they should believe that the persons in charge of the freight
It is clear from the doctrine of the foregoing case that the circuit judge committed no error in refusing to direct a verdict for the defendant. The deceased here, as the plaintiff there, stepped upon the defendant’s track without making proper use of his eyes and ears; it may even be said that his negligence was gross. But there was here, as there, evidence tending to show that the defendant’s train men were not in their places, in the proper discharge ol their duty, exercising the care required of them while running within the limits of a populous city, keeping the proper look-out; and that, if they had been in their places, and keeping the proper look-out, they might have seen the deceased in time to check their train and prevent running over him. This evidence made a case for a jury.
“ What is ordinary prudence, depends not upon abstract propositions, but upon facts surrounding the case. Experience shows that in populous cities numbers of persons will be found upon railroad tracks : infants, blind men, insane and very aged persons may be there without fault upon their part. The accidents of life may and do bring these persons there in full possession of their senses. It is immaterial, so far as the duty of a railroad company to adopt precautions demanded by ordinary prudence is concerned, how the persons came there. The well-settled rule as to contributory negligence is, that, though the plaintiff has been guilty of negligence, and though such negligence may have contributed to the injury, yet if, by the exercise of ordinary care, the defendant could have avoided the result, the plaintiff’s negligence is immaterial. This doctrine rests upon the basis, that he whose act is the efficient cause of the injury should be liable ; and even as against wrongdoers ordinary care is a primary duty. To none is it more essential that the rule be applied than to railway companies, and common regard for human life demands that its application should be insisted upon when they are running their*361 trains through cities. Here the testimony tends to show that a watchman properly placed could have seen and sig-nalled in time to save the child.”
The record does not show whether this language was .an extract from some law book or judicial decision, or whether it had been written out by the plaintiff’s counsel to be read as a part of his argument.. It seems to contain .matter which is partly argumentative and partly expressive of the proposition of law which the supreme court announced in the case of Kelley v. The Hannibal, etc., Railway Company (supra). We see nothing in it which was not in conformity with the instructions which the court had given, or which had a tendency to mislead the jury, and we cannot say that it was an abuse of discretion to allow it to be read.
The judgment must be affirmed.