143 Mo. App. 371 | Mo. Ct. App. | 1910
This action is instituted by plaintiff and wife against the defendant to recover damages for the death of their son, Edward J., which occurred on the 26th day of March, 1906.
The petition charges several acts of negligence as the cause of the son’s death, only two of which are in issue at this time.
One consists in a charge against defendant of running its cars at a negligent and dangerous rate of speed. The other that defendant was negligent in failing to exercise ordinary care to avert injury to the deceased after a discovery of his position of peril; or that defendant was negligent in failing to exercise ordinary care to
The deceased Avas six years of age at the time he Avas killed. He Avas struck and killed by defendant’s car going east on TAvelfth street betAveen Indiana and Bales avenue. He had been attending the Whittier school on Indiana avenue, but had been dismissed at that hour, it being about four o’clock p. m. The Whittier school building is in the rear of some vacant lots on the north side of TAvelfth street. It Avas shoAvn that children attending said school played on the vacant lots. It Avas shoAvn by the evidence introduced by the plaintiff that the boy Avas seen running across the vacant lots in a southeasterly direction; that he ran doAVn the bank and started across the street, at Avhich time defendant’s car going east Avas about one hundred and tAventy-five feet distant; that the car at the time Avas going at about a speed of eighteen or tAventy miles an hour; that there Avas nothing to indicate that the motorman did anything to check the speed of the car before it struck the boy; and that then he threAV on the brakes and stopped the car Avith all possible dispatch. It Avas also shoAvn that the boy from the time he started across the street continued in a run until he Avas struck. He had crossed the north track at the time and Avas hit by the north part of the car Avhile he Avas on the north rail of the south track. The track Avas level and there Avas nothing to obstruct the vieAV of the inotorman. It Avas also shoAvn that the car at the rate of speed in Avhich it was moving could have been stopped in a distance of forty-five or fifty feet; that there was no car on the other track at the time, but that one came up. from the east immediately after the boy was struck; and that the cár traveled ninety or ninety-five feet after striking him.
The evidence of defendant was in effect, that at the time in question, there was a ear passing Avest on the south track and that it met the east bound car about
Plaintiffs submitted the case to the jury under the humanitarian theory. The finding and judgment were for plaintiffs from which defendant appealed.
The defendant offered a demurrer to the evidence of plaintiff which the court refused.
The law is that a party about to cross a street railway track must look and listen for approaching cars and is not entitled to recover for injuries due to a collision with a car if he fails to do so, if by so doing he would not have been injured. [Rissler v. Transit Co., 113 Mo. App. 120; Haley v. Ry. Co., 197 Mo. 15.]
Notwithstanding it was the duty of the boy before he attempted to cross the street over which defendant was operating its cars to watch for their approach, a corresponding duty rested upon defendant’s operators not to injure him while passing over the track, if by the exercise of reasonable diligence they could have avoided doing so. This is the test of its liability.
The argument of defendant however is based mostly on its own testimony to the exclusion of that of plaintiff. The question for the court to determine must be determined by that of plaintiff alone. Was there sufficient evidence going to show that the boy was in a position of peril, which the motorman saw or by the exercise of reasonable care should- have seen in time to have avoided striking him, had he made a reasonable effort to check or stop his car? The car was passing by a
The father of the boy was introduced as a witness who, at the close of his testimony, shed tears but made no audible expression of his grief. Whereupon the defendant’s counsel asked the court to discharge the jury on the ground that the conduct of the witness was calculated to arouse the jury’s sympathy. The court refused this request. The mere shedding of tears by the father of the dead boy was a very natural consequence under the circumstances and perhaps unavoidable. It was something over which the court had no control.
The defendant assigns as error the action of the court in refusing many of its instructions. It asked twenty-three in all, eight of which were given as asked and two others modified. We believe defendant got all the law it was entitled to in those given, and there was no error in the modification of the other two. The instructions for the plaintiff were in harmony with our theory of the case. Affirmed.