161 Mo. App. 314 | Mo. Ct. App. | 1912
The respondent, a boy ten years of age, sued the appellant by his father as next friend for damages on account of personal injuries received on May 19, 1910, in the yards of the defendant company at Joplin, one of defendant’s trains having run over and crushed his leg in such a way that amputation was necessary. The trial resulted in a verdict in favor of the plaintiff in the sum of $2,500 and the defendant has appealed.
The negligent acts of the defendant as charged in the petition were, in effect, as follows: That the plaintiff having jumped upon the ladder of one of defendant’s freight cars in its yards in Joplin, the train of which said car was a part was put in rapid motion and that in consequence of the rapid motion plaintiff held to the car until the speed of the train should be so slackened that the plaintiff could dismount with reasonable safety, and that while plaintiff was in said position on said car, and while it was dangerous for
Several witnesses were introduced by the plaintiff; among others, Hazel Adams, who testified that she was in the defendant’s railroad yards at Joplin at the time the accident occurred and that she saw the plaintiff down on the railroad track at the time he was injured. That he had his hand and one foot on a railroad box car, and that the man who was on the car in front of said box car threw a handful of gravel at him; that the boy fell and one of his feet went under the train and was run over; that the man who threw at him was a brakeman who was standing on a flat car and that he got the gravel on the car; that he shouted to the boy just before he threw but she didn’t know what he said; that he just picked up some gravel and threw it at the boy and hallooed and
As stated, the accident occurred on May 19, 1910. The suit was commenced against the defendant company for damages on account of said injuries by his next friend on May 21, 1910. The petition then filed was subsequently amended on November 21, 1910. The cause of action as stated in this petition and its amendment was a substantially different narrative of the facts in regard to the accident than that contained in the present petition which was filed on May 12, 1911, the first suit having been voluntarily dismissed by the plaintiff. The former petition alleged that the plaintiff at the time of the accident was on ground passing along a footpath near the defendant’s railroad track while the defendant’s freight train was passing north, and that the defendant’s servant and agent threw at the plaintiff a large stone; that when he threw it he hallooed, thereby frightening the plaintiff and causing him to jump and dodge from the said stone, and that without any fault on plaintiff’s part
These petitions were introduced in evidence by the defendant, without objection, as a part of its defense, and as -appeared therefrom the first petition was based on the theory that at the time plaintiff was injured he was not on the train at all but was on the ground, and that some words passed between the brakeman and the boy when the brakeman threw something at him and he dodged and was sucked beneath the train.
After the first petition had been filed, the defendant (on June 18, 1910) took the deposition of the injured boy and in said deposition the plaintiff in great detail by his testimony fully corroborated the statements contained in the original petition and its amendment. At the trial of this case, the plaintiff was not introduced as a witness and did not give his testimony. It was not shown that there was any mistake, inadvertence, or oversight by the plaintiff, his father as nest friend, or his attorneys, in regard to the statements in the petition or the testimony given by the plaintiff in his deposition, or why there was a discrepancy between the original petition and the evidence given by the boy to sustain it, and the cause of action as stated in the present petition; so that there is an irreconcilable conflict between the statement of the facts attend
At the conclusion of the evidence, the defendant asked an instruction to the effect that the jury might take into consideration the fact of the plaintiff not testifying and might consider such fact as an unfavorable presumption against him because he had been charged by the defendant company with changing the facts upon which he based his cause of action. The defendant also asked the court to give the following instruction: “Any statement proved by the defendant to have been made by plaintiff by deposition or pleading, if any such have been proved, against the interest of the plaintiff and while possessed of sufficient intelligence to understand the effect of questions and answers thereto is presumed in law to be true because said and stated against his interest. What plaintiff may have said in his own favor, you are not bound to believe, but you may reject or believe the same as you may find the same true or false under all the evidence. And in this connection you are further in- - structed that the burden of proof is upon the plaintiff to show by the greater weight of credible evidence that plaintiff did not at the time of making statements to
The question arises whether the plaintiff, being an infant ten years of age, could employ counsel and authorize them to make admissions in his behalf in the drawing and filing of pleadings; and, whether the admissions in the pleadings filed in his behalf by his next friend were binding upon him.
The general rule is established, almost without exception, that the -representative of an infant, whether guardian or attorney, has no power to bind the infant by admissions in his pleadings and thereby prejudice his interests. Ralston v. Lahee (Iowa), 74 Am. Dec. 291; Lloyd v. Kirkwood, 112 Ill. 329; Rucker v. Bean, 65 Me. 352; Collins v. Trotter, 81 Mo. 275; White v. Joyce, 158 U. S. 128, 146; Knights Templar & M. L. I. Co. v. Crayton (Ill.), 70 N. E. 1066, 1071; 1 Ency. Evi. 460. An infant is incapable of making an admission which can affect his right; and a fortiori, the admissions of another person cannot affect an infant’s rights. [22 Cyc. 516.] It follows from these authorities and others that might be cited that no error was committed by the court in its refusal to give these instructions.
The appellant further urg-es that its demurrer offered at the conclusion of all the evidence should have been sustained on the ground that the evidence given in the case, taken as a whole, considered either as direct or circumstantial, failed to show that the injury was the proximate result of the defendant’s negligence.
The law is well established that there must be some substantial evidence tending to establish circumstances from which a jury will be warranted in finding that the inferences as to the defendant’s liability clear
The negligence charged in the plaintiff’s petition is an affirmative fact of which plaintiff carries the burden of proof, and it is to be established by a preponderance of the evidence before he can recover. This may be shown from inferences from facts once proven, but the facts from which the inferences are drawn must be established by the evidence; and it is a matter of law, and a part of the duty of the court, to determine whether or not the facts shown in evidence have such a tendency and fairly justify the conclusions. [Ryan v. McCully, 123 Mo. l. c. 646, 27 S. W. 533; Warner v. Railroad, 178 Mo. 125, 77 S. W. 67; Trigg v. Ozark Land & L. Co., 187 Mo. 227, 86 S. W. 222.] But before an appellate court can consider the question of negligence, it must determine that the facts are indisputable and that but one legitimate legal inference may be drawn from them. These rules, applied to the facts of the present case, do not permit us to say that the negligence of the plaintiff was a question of law. The evidence tended to show that the defendant’s brakeman, standing within a few feet of the boy, in a harsh voice hallooed at him and in a threatening manner threw gravel at him when he was in an exposed condition, clinging perilously to the side of the car then moving some seven or eight , miles an hour; and the inference, it seems to us, is a fairly legitimate one — and the conclusion does not arise on mere suspicion or conjecture — that his dodging was
But the defendant further contends that the causal connection does not logically follow by the mere-proof of negligence, and that the reasoning that what comes after is caused by what went before does not apply. The law requires the plaintiff, where there are two causes, to show with reasonable certainty which of the two causes produced the injury, and if the evidence shows the it resulted from either of two causes, for one of which the defendant is liable and for the other of which he is not liable, the plaintiff is then required to show to which of these causes the injury was due; the plaintiff must offer sufficient evidence to enable the jury to trace the causal connection between defendant’s negligence and plaintiff’s injury. If the witness, Hazel Adams, is to be believed, the plaintiff slipped, and this was the immediate cause of his falling beneath the moving train. And if it is true that the plaintiff’s falling was caused by fright produced by the brakeman, the plaintiff is required to show with reasonable certainty that it was fright, and not an accident, that caused him to fall. [Warner v. Railroad, supra; Smart v. Kansas City, 91 Mo. App. 586; Purcell v. Tennent Shoe Co., 187 Mo. 276, 86 S. W. 121.] But the sufficiency of the evidence and the weight thereof and the credibility of the witnesses by which their conclusions are to be reached is left entirely with the jury, and it is for them to determine whether the evidence was sufficient to show the liability of the defendant as charged in the petition. In an action for damages on account of negligence, if the evidence is susceptible of two inferences, one exculpating and the other inculpating the defendant, the question is one of fact for thé jury. But the appellate court in determining whether the evidence is sufficient to withstand a demurrer is required to protect the litigant’s constitutional right of trial by jury, and in disposing of
The appellant further claims that the evidence is uncontradicted that plaintiff was guilty of contributory negligence and that recovery should have been denied on that ground.
Although considering plaintiff’s knowledge and capacity, it should have appeared that he knew the danger of his act in voluntarily getting upon the car and how to avoid it, and although he stayed upon the car while it continued to accelerate, its motion without any effort to get off, such facts would not relieve the defendant’s servants of their duty towards the boy. And notwithstanding the plaintiff, under the circumstances had been guilty of negligence in getting upon or remaining upon the car, yet if defendant’s servants, after they knew the perilous condition of the hoy, by failure to exercise ordinary care caused the injury,
The appellant objects to the giving of the plaintiff’s instruction No. 1 which is as follows:
“The court instructs the jury that if they find from the greater weight or preponderance of the evidence that on or about the 19th day of May, 1910, plaintiff was an infant of about the age of ten years, and that plaintiff got upon and on to one of defendant’s freight trains then on one of the tracks of the defendant’s railroad at Joplin, and that said train was put in rapid motion moving to the north,'and that plaintiff in consequence of said rapid motion of said train held on to the car which he had mounted; and if you further find that it was dangerous for plaintiff to be put off of said car or to attempt to get off of said car owing to the rapid motion of said train, and if you find it was in rapid motion, and that while plaintiff was so on said train holding on to the said car and while said train was in rapid motion, if it was in rapid motion, one of defendant’s brakemen in the course of his employment and in the line of his duty in the operation of said train, and having knowledge of the perilous condition of plaintiff and of the danger of plaintiff being put off or attempting to get off of said train while same was in rapid motion, negligently, carelessly, willfully and recklessly threw at plaintiff some missile or substance as though to injure plaintiff, and negligently, carelessly, willfully and recklessly commanded or directed plaintiff to get off of said train while same was in rapid motion ns aforesaid; and if you further find that the plaintiff was of tender years and became so terrified and frightened by said assault and command*330 of said brakeman that he attempted to jump or dodge from said assault and the throwing of said substance, and in so doing, plaintiff, while in the exercise of such care as a person of his age at that time ordinarily exercises, slipped and fell from said train while same was in rapid motion as aforesaid, and fell under said train and one of the cars of said train struck plaintiff and ran over and crushed and mangled his right foot and ankle so that it became necessary to amputate the same and same was amputated in consequence thereof, then you will find the issues in favor of the plaintiff, even though you may further find and believe from the evidence that plaintiff was a trespasser on said train.” (The italics are ours.)
It will be seen that the court by this instruction required the jury to determine whether at the time the plaintiff slipped and fell he was exercising ordinary care, and that they were to determine this question by his age. This was clearly erroneous. It is the capacity, not the age, of an infant that is the criterion of his responsibility; that is, the individual infant is singled out and his conduct is measured by his own acts — whether it was such as was ordinarily careful for one of his capacity and age, and not of his age alone, and the standard stated in this instruction was not the legal standard. The jury in determining whether plaintiff exercised care or' was. negligent should have been authorized to take into consideration not only his age, but his experience and capacity, as factors, and his proved capacity to understand the danger to which he was exposed, and should not have been limited in this consideration to the care usually exercised by a boy of his age. [Schmitz v. Railroad, 119 Mo. l. c. 276, 24 S. W. 472; Saller v. Friedman Bros. Shoe Co., 130 Mo. App. 712, 109 S. W. 794; Longree v. Jackes-Evans Mfg. Co., 120 Mo. App. 478, 97 S. W. 272.]
Other objections are made by the appellant to the instructions given and refused by the court, but a careful consideration fails to reveal any material error committed therein except as hereinbefore stated.
For the reasons herein appearing the judgment is reversed and the cause remanded.