213 Mo. 102 | Mo. | 1908
This is an appeal from a judgment of the circuit court of Jackson county, for personal injuries received by the- plaintiff, who, at the time of the injury, was a little girl not quite six years old. The accident happened on the 26th of February, 1901. The jury returned a verdict for the plaintiff for $10,000', and after the usual preliminary steps, the defendant has brought the case to this court on appeal. This is the second appeal in this case, the former one appearing in the 182 Mo. 528.
It is conceded by counsel on both sides that the facts in evidence on this second trial are practically the same as those appearing on the first trial, and as there is a full statement in the former report in the
I. Instruction number one given by the court in behalf of the plaintiff is as follows:
“The court instructs the jury that if they find and believe from all the evidence in this case that Metropolitan avenue at Fifth street in the city of*110 Argentine, on February 26, 1901, was an open and public street in said city, and that at said date defendant operated an electric street railway running east and west on said Metropolitan avenue, for the purpose of transporting persons for hire from one point to another in said city, and was using the tracks and operating the railway car mentioned in the evidence, and that plaintiff was, at said date, crossing said Metropolitan avenue from the south to the north at the intersection of Fifth avenue, and that, while she-was so crossing said avenue, she was run upon and knocked down by the west-bound car mentioned in the evidence, and injured to such an extent as to cause' the amputation of her foot and part of her leg, and if you further find and believe from the evidence that, at the time above mentioned, plaintiff exercised such care and caution, for her own safety, as a reasonably prudent child of her age and capacity would have exercised under the same and similar circumstances, and that defendant’s agents, servants and employees, in charge of and operating said car, either saw, or by the exercise of ordinary care on their part could have seen plaintiff moving toward and upon said tracks, if you so find, in time to have checked the speed of said car with safety to its passengers and to have avoided running over and injuring plaintiff, if you find such were' the facts, and that said servants and employees neg’lected and failed to do so, and that such failures, if any, directly and proximately caused the injury to plaintiff, then your verdict shall be for the plaintiff.”'
It is insisted that this instruction is erroneous and misleading because it authorizes the verdict for the plaintiff upon proof that defendant’s agents, servants and employees in charge of and operating said car either saw or by the exercise of ordinary care on their part could have seen plaintiff moving .towards and upon said tracks, whereas the petition charges
We do not think it is open to serious controversy that there was sufficient evidence to show that the motorman saw, or at least could have seen, plaintiff' the moment the west end of his car got even with the rear end of the east-bound car, as there was nothing there to prevent his seeing the plaintiff. The evidence on the part of the plaintiff tended to show that these two cars passed each other east of the hotel, thus giving the motorman a clear view of the street crossing over which the two children were passing from behind the east-bound car, and there was ample evidence, if' believed by the jury, that the motorman could have seen this little girl approaching or moving towards this track; if this were true, and the jury so found, then the child was in a situation of danger from the time she left the sidewalk, the whole of the forty-two feet she traveled in this direction towards the car track, and was in the plain view of the motorman all this time. It is true the court in this instruction did not use the word “perilous,” or “perilous situation,” hut when a motorman in charge of an electric car moving from fifteen to twenty miles an hour along
In Cytron v. Railroad, 205 Mo. 692, l. c. 719, in a case very similar in its facts to this, it was said: “The motorman knew his car was bound to occupy, with crushing force, the very spot the child’s steps were directed to. It was obvious to the motorman that the child did not know that fact.” Under such circumstances it was said: “Both danger and duty began the instant the child left the sidewalk, bound headlong into peril.”
In Meeker v. Railroad, 178 Mo. l. c. 176, it was said: “The negligence charged in the petition is that the defendant’s servants ‘saw the child upon the tracks of the said defendant and approaching there at said crossing of said Summitt and Twenty-third streets in a position of imminent peril, or when by the exercise of ordinary care they might have seen said child upon said tracks and approaching thereto in such position of imminent peril in time to have stopped said train of cars and avoided the injury complained of. ’ ” • The defendant asked the court in that case to instruct the jury that defendant could only be held liable if the child was actually on the track and actually in a position of peril' and that it could not be held liable if the child was only approaching the track and about to be placed in a position of peril. But the court refused to so instruct and the refusal of the court was assigned as error. The testimony disclosed that at sometime after the train passed the north line of Twenty-third street, the child left the southeast comer of the street and started east crossing Summitt avenue (directly across, most of the witnesses say, and diagonally
While the instruction in this case did not use the words “peril” and “perilous situation” it told the jury
We think that the perilous situation of the plaintiff
II. Without reproducing all the testimony, it must suffice to say that we think there was ample testimony, if credited by the jury, to justify their finding that the motorman either saw or could by the exercise of ordinary care have seen the little girl in ample time to have checked his car and avoided injuring her.
III. It is insisted, however, that the court’s instructions are erroneous in that they submit to the jury, “That if the agents, servants and employees in charge of and operating said car, either saw, or by the exercise of ordinary care on their part could have seen, plaintiff moving towards and upon said track in time to have checked the speed of said car,” etc., because this court in the former appeal said: “Upon another trial plaintiff’s instruction number four should be restricted to the ‘motorman’ who had control of the movement of the train. ’ ’ It will be noted that in this instruction the servants charged with the duty of keeping an outlook for plaintiff and of checking the car in time to avoid injuring her, were the “agents, servants and employees in charge of and operating the said car. ’ ’ And by the sixteenth instruction given on behalf of the defendant, the jury were instructed
IY. Defendant also contends that the acts of the defendant’s servants in charge of the ear must have been wanton or willful to hold it liable for the injury to plaintiff, but such is not the doctrine of this court. While in some of the cases the language of the court would indicate that the action of the servant must amount to wantonness or willfulness, it was used in those cases with reference to adults in full possession of their faculties, and the servants of the defendants had a right to rely upon the presumption that a grownup man or woman would act with due caution for his or her own safety and not go upon a railroad track
Y. As to the claim that the various acts of negligence alleged in the petition are contradictory of each other, it is sufficient to say that the only issues of negligence submitted to the jury under the instructions were, first, negligence in failing to discover plaintiff approaching and going upon defendant’s tracks in time to have checked the speed of its cars; second, in failing to keep a vigilant and reasonable lookout for children upon the track or approaching the same and whether the defendant’s motorman could have in the exercise of reasonable care discovered plaintiff in the act of approaching its tracks, etc.; third, in failing to approach said crossing with said car under reasonable control. Each of said acts is consistent with the
VI. We think there was no error in refusing other instructions prayed for by the defendant, as those given for the plaintiff and the defendant fully covered all the facts and law applicable thereto, and this court has often condemned the practice of giving unnecessary instructions. Certainly there can be no complaint in regard to the court not having submitted the contributory negligence of the plaintiff in this case. It was specifically presented to the jury in each of the plaintiff’s instructions and in no event could the defendant have suffered on that ground, and. hence we are not required to say that any error would have been committed had the court neglected to have submitted the question of contributory negligence of a child of this tender age. We have endeavored to carefully go through all the assignments of error and have read the record, and in our opinion the case was one for the jury under proper instructions of the court. We think that the instructions read all together fairly submitted the case and the judgment, therefore, must be and is affirmed.