111 Mo. App. 324 | Mo. Ct. App. | 1905
(after stating the facts). — The injured boy’s statement that when he was between the two parallel tracks and in a position of perfect safety, he saw the east bound car advancing on the south track only five or six feet away, and thinking he could cross before it reached him, endeavored to do so, - is corroborated by other testimony and contradicted by none. So it may be assumed that the accident happened in that way. If it did and the boy is to be held as strictly responsible for the consequences of his act as a grown person would be, we would have to defeat the plaintiff’s action on the ground that his son’s negligence wholly or partly caused the casualty. No inference can be deduced from the stated facts which would not embrace the negligence of the
But it was not enough to warrant a verdict against the’defendant for tbe jury to find plaintiff’s son was not negligent in view of bis age and discretion; it was necessary for them to find besides, that defendant’s servants, operating tbe car, were guilty of some negligence which caused tbe casualty. Neither was it sufficient to constitute a case for tbe jury that tbe court could not say tbe inference was irresistible that plaintiff’s son was guilty of contributory negligence. There must have been evidence to' show tbe defendant’s servants were guilty of some neglect that wholly, or in part, led to tbe accident. However young or immature the boy may have been, no cause of action was made out unless tbe carmen were shown to have omitted a duty they owed him, with a dire result. In several of tbe cases last cited tbe facts were quite analogous to, if not identical with, those before us, and tbe railroad companies were exonerated from liability, not on tbe score of the injured person’s contributory negligence, which, as said above,
Tbe fact that tbe car on wbicb Walter Fry rode to bis alighting place was not stopped for him to get oft, bad nothing to do with bis subsequent collision with another car and afforded no basis for a verdict against the railroad company, as tbe court below properly charged. He got off tbe car be was riding on safely and tbe neglect to stop it did no barm.
Tbe next charge of negligence is tbe alleged failure to give warning, by sounding tbe bell or otherwise, of the approach of tbe car to tbe crossing. There was testimony sufficient to raise an issue of fact as to whether tbe signal was given or not. It is true that testimony was of a negative character, as tbe witnesses who' spoke on tbe subject simply said they beard no signal. But they were so near tbe scene that probably they would have beard one if' it bad been sounded; and their testimony was for tbe consideration of tbe jury, if tbe issue of whether a signal was given was important. Murray v. Railway, 176 Mo. 183, 75 S. W. 611. But that issue was immaterial; because tbe failure to sound tbe bell as tbe ear neared tbe crossing cannot be accepted as tbe proximate cause of the accident. Tbe boy was apprised of tbe car’s approach by actually seeing it while be was in a safe position, before be advanced into one of danger, and when tbe situation in no way tended to force him to go forward. He went forward because be believed be could cross in safety. He testified positively that when be was between tbe two tracks be saw tbe car five or six feet away; and, therefore, be needed no warning of its proximity. Tbe law is that omitting to give notice of tbe appi’oach of an engine or car cannot be availed of as a ground of recovery by a person injured by tbe
The first instruction granted on the plaintiff’s request told the jury he ought to have a verdict if they found the motorman was negligent in failing to keep vigilant watch ahead, or to stop his car in the shortest
There was other evidence from which the jury might well have found the car crew were negligent, and in a way that caused the accident. It was in testimony that the colliding car was running at a speed which, considering it was passing a crossing, and one where another car had just discharged passengers, might justly be found to have been excessive and to show negligent operation. The municipal ordinance limiting the speed of.
The law of this case wall be made clearer by an analysis of the precedents we have cited as containing analogous facts. In the Boland case, the plaintiff’s daughter was run over and killed by a street car while walking across Market street in St. Louis. The testimony showed the child was only three or four feet from the car when the attention of the driver was attracted to it by the warning shout of a nearby pedestrian. It appeared the driver stopped as soon as he could after he knew of the child’s danger, and did not appear that he was negligent in not seeing it sooner, as he was occupied at the time in avoiding a collision with a wagon. After approving the doctrine that a child of immature years is less responsible for negligent conduct than a maturer person, the court said:
“Now, by reference to the evidence, we think it clear there was no negligence shown by defendants or their agents. The attention of the driver of the car was directed to another point of the street, where he anticipated danger. He was driving slowly and cautiously, with his knee against the dashboard of the car, and his hand on the brake, to be ready in an instant to stop- the car, and prevent damage in case the threatened collision took place. There is nothing whatever to show that he knew the child was approaching the car, or had any reason to apprehend the child was there. The witness states that the child was from three to five feet from the car when first discovered, and the alarm given, going directly ahead, and at rather a rapid rate. The driver stopped as soon as he could, but not until after the fatal accident had happened.”
In the present case, as opposed to that one, there
In Mescheck v. Railroad, 71 Mo., supra, a horse car was moving at a .moderate speed down a slight grade, when the driver saw a child about six feet ahead of the mules and four feet from the track, running toward it. The driver exerted himself to stop the mules, but the child got on the track and was run over and crushed. The judgment for the plaintiff was reversed because there was no proof of any negligence on the part of the driver. It was said he could be convicted of negligence only on the hypothesis that he did not begin to stop the car as soon as he ought, and that there was no positive proof he saw the boy until he shouted to him; but even if he saw him when on the sidewalk he had no right to suppose he would undertake to cross the street.
In Dunn v. Railroad, 21 Mo. App. 188, plaintiff’s son, a boy nine years old, got off one horse car, then turned around and started to run eastward across the street, on which were two street railway tracks, and a car coming from the opposite direction ran over him. That car was moving at an ordinary trot down a slight grade. It was ruled that the question of the boy’s contributory negligence, considering his years, was for the jury; but that as there was no substantial evidence of negligence on the part of the driver of the car that hurt him, a recovery should be denied as a matter of law. That case was quite similar to the one at bar, leaving out of view the question of speed.
In Kennedy v. Railroad, 43 Mo. App., supra, the plaintiff’s daughter, a girl ten years of age, was hurt in running across Broadway in St. Louis. She emerged from behind an ice wagon in front of a mule car and was run over and hurt. In that case the car stopped after the front wheel passed over the girl. Just the distance away the mules were when the girl got on the track is not stated; but the court evidently thought the driver
In O’Flaherty v. Railroad, 45 Mo. 70, the opinion was written by Judge Wagner, avIio also wrote the opinion in the Boland case. Different results were reached in the two- cases, and the company was held liable in the O’Flaherty case because the car which hurt the child was traveling at a rapid speed and its driver, instead of looking ahead and being ready to avoid accidents, was looking behind him and holding to the dashboard in order to maintain himself on the platform. This was held to be gross negligence.
In the Van Natta case, 133 Mo., supra, the injured boy got off a car, ra.n behind it and was struck by another on a parallel track. Unlawful speed Avas averred. The judgment for the plaintiff Avas reversed for errors in the instructions, but the case appears to have been held to be one for the jury on the issue of excessive speed.
In the Jett case, 77 8. W. supra, there was testimony to sIioav the child that Avas killed was walking with her brother along a railAvay track for some distance ahead of the car and in plain vieAV of the motorman. It was held that Avhile the children were negligent in Avalking on the track Avithout looking for a car, and while the motorman had a right to- presume, in the first instance, that they Avo-uld -see it and get out of the >vay, yet it was his duty to be on constant watch and in the event it became evident that they Avere not observing care, he should have checked his car to avoid stinking them; and it was a question for the jury Avhether he complied with his duty in this regard.
In Riley v. Railroad, 68 Mo. App., supra, the injured boy was frightened by steam that escaped from a locomotive on ope track and ran along another track on which an engine Avas moving and Avas struck. The undisputed evidence shoAved that the engine Avhich did the harm Avas running at a speed of three or four miles an hour and
Our examination of the foregoing cases discloses that in those where the evidence was held to be for the jury, the defendant’s servants were shown to be remiss, either in running at an unlawful speed, or in failing to take proper measures to prevent striking the injured party after they saw his danger; whereas, in the cases where the plaintiffs were nonsuited, undue speed was not relied on for a verdict and it was clear that the injured children got on the tracks so close to the approaching cars or engines, that it was impossible to save them.
The judgment is reversed and the cause remanded.