205 Mo. 450 | Mo. | 1907
This is an appeal from the circuit court of Jackson county. The action was commenced .on the twenty-second of June, 1901, and afterwards an amended petition was filed on December 17, 1901.
Plaintiff states that on the thirteenth of May, 1901, she was the mother of Harry Jaffi, a minor son six years of age, and that the father of said minor was dead, and that the said Harry Jaffi was never married; that on the thirteenth day of May, 1901, about 3:30 p. m., a train crew of the defendant company, consisting of Dick Addison and William Reed, engineer and fireman, and Lon Hayden and W. J. Thelan and Pone Whiting as brakemen, were operating an engine and string of cars on State Line street, a part of which is in the State of Missouri and in Jackson county. That said State Line street is a public street located in a densely populated portion of Kansas City, with tenement houses located on each side thereof, which were
„ To this petition, the defendant in its answer admitted that it was a corporation engaged in the operation of the line of railway described in the petition, and that on the day and at or near the place stated, an accident occurred whereby Harry Jaffi, the minor son of. the plaintiff, was killed, but denied that his death was caused by any carelessness or negligence on its part or that of its servants, agents or employees, and then made a general denial of all the other allegations in the petition, and for a further answer a plea of contributory negligence on the part of said Harry Jaffi and of the plaintiff his mother.
The cause was tried and resulted in a verdict for the plaintiff, which upon a motion for a new trial was set aside by the court on the ground that the verdict was against the weight of the evidence. The cause was then retried at the November term, 1903, and again resulted in a judgment for the plaintiff for five, thousand dollars. From that judgment the defendant appeals.
There is irreconcilable conflict in the testimony of the various witnesses, but the evidence on both sides' established that the plaintiff’s son, a boy about sixyears old, was killed by being run overby defendant’s cars on State Line street in Kansas City, Missouri, on the thirteenth of May, 1901. State Line street runs north and south between the States of Kansas and Missouri, and is divided by the State line and is located in what is known locally as the “west bottoms” in Kansas City and at the time of the accident it was occupied by the tracks of the Missouri Pacific Railway company, the defendant herein, and according to the evidence, was used as a yard for the making up of trains. ' The main track of the railroad is in this State, and some of the
Mrs. Keating, the witness for the plaintiff, who lived in the second story of the same house with Mrs. Jaffi, testified that at the time of the accident she heard some screams and ran to the front yard, caught up Mrs. Jaffi’s crippled child that was crying and calling for its mother, and ran out on the sidewalk and looked south but could see no one; the child was still crying in her arms, and she thought that perhaps the screams came from the cottage north of the house where she lived. She ran up the street and found that the screams did not come from that point. She then ran out into the street around the north end of the cars standing in front of the buggy housé and came down on the west side. There she discovered Mrs. Jaffi crouched down at the rear wheel of the north car. The witness then ran with the crippled child and left it with another child and ran back to Mrs. Jaffi, and found her bending over the boy Harry, who had been crushed and injured, and she took hold of her, Mrs. Jaffi, and undertook to force her back to her own gate and with the aid of some other women did so, but at the gate Mrs. Jaffi broke
Another witness, Hessie Ray, testified she lived at 934 State Line street, and remembered the accident which happened to the little' Jaffi boy; it was about three o’clock in the evening; her house was on the west side of the street towards the south. She was. washing that day, and had come over on the east side of Ninth street where she got water; when she went after the water she did not notice whether there was any car in the street or not. She got the water and started home, coming from the north going south, and when she was ■ on State Line street on the north end of the cars, she saw the little boy throw out his water and the train backed on him. He had started back and got his foot on the track and the train backed and caught him pretty near in front of Mrs. Jaffi’s house. The car was standing still when the boy'started to cross the track, she. did not notice exactly where he was caught, she was seared herself. After the car caught the boy, it pulled south quite a ways and then bumped back and then stopped, and if they had not jerked the boy out as quick as they did it would have cut him in two'. His mother had hold of his arms and was hallooing. His mother held on to him until the train knocked her down and then another white woman ran up and dragged her
Thomas Corrigan testified that he was police officer in Kansas City working on west Ninth street, at the time of the accident, and was on Ninth street, east, at the corner of State Line street, when a man told him that a hoy had been run over; that he came down to the southeast comer of State Line and Ninth streets, which he thought was about two hundred and seventy-five feet from the place of the accident; that from this point he could see the mother leaning over the child and there was no one else at the end of the car or in sight at that vicinity; that he went straight from the corner down to where the little hoy was, right down the street the nearest way; that there he saw blood on .the frog on the rail right at the frog; that when he got there Mrs. Keating was there and some colored people, and the foreman of the train crew came, up to ask him where he could find a telephone; that he saw Mrs. Keating have hold of Mrs. Jaffi, wanting to take her to the house, and she took her away from the child, hut that she had not taken her away when he left with the foreman. This evidence tended to show that the accident occurred at the north end of the north car, as the policeman, Mr. Corrigan, could not have seen Mrs. Jaffi from the southeast corner of Ninth street if she had been at the south end of the car and on the west side of it.
The defendant’s evidence tended to prove that the
It was admitted by counsel for the defendant in open court that there was no brakeman on the top of the cars, nor was there any brakeman at the north end at the time the boy was injured, but that a brakeman was at the south end of the three stationary cars there.
W. J. Thelan testified for the defendant that he was one of the switchmen handling these cars; that the engine pushing the different cars came up the track from the south to the first three cars standing there, and the foreman Hildebrand made a coupling; that the engine and the eight cars then came on north until they struck the last three cars, when he himself coupled them; that the engine then pulled those cars back to the south until they were clear of what is called the hay switch, when the witness started to cut these three cars off and did pull the pin between them and the other cars; that just as he was pulling the pin, the cars at that time moving southwards, he heard Pope hollow, “Do not move these cars, you are running over some
Hildebrand, the foreman of this switching crew, was called by the plaintiff and testified that when he found the little boy they had pulled him out from between the north car and the car next to it on the south. “Q. He was between the south end of the north car and the north end of the south car? Ans. Yes, sir. Q. Did you notice any blood there? Ans. Yes, sir. Q. Where was the blood? Ans. There was blood on the rail right between the two cars and blood on the top of the wheels, on the south tire of wheels on the north car.” He testified further that before coupling on to the north three cars he did not send any one of his crew back to the end of these north cars to see if everything was clear behind them in the street, but that it was a man’s place to see that it was clear. He did not see any one go back there; that he paid no at
John Davis testified for the defendant that he was* sitting on the east side of the street when the accident occurred; that he heard the child scream; that he looked under the cars and there was a boy lying there, and he saw a fellow take and jerk him and pull him out in a westerly direction; that he jumped over the bumpers between the north car and the car next to it, and saw Tom Corrigan the policeman standing there, and that Mrs. Jaffi came down there hollowing, “Oh my child, my boy” and then others came.
George Fleming for the defendant testified that he was sitting on the sidewalk on the street and heard the child scream; that he looked- under the box car just as the wheels stopped rolling, and saw him on the track between the north car and the south car, under the north tracks of the south car when he first saw him as he ran around the north end of the north car, and when he got around there Pope was pulling him out from under the car. He then went for a policeman, Thomas Corrigan; that he did not go back with him to the boy.
William Pope testified that he was the man who saw the boy run in between the north trucks of the second car and that the boy was knocked down and the witness pulled him out. That witness was within two or three feet of the boy at the time he ran in. His statement of it is that the accident occurred when the engine backed back and they had some more boxes on the south end. They backed back and bumped against these three boxes that were standing still and knocked
John T. Moore testified for the defendant that he was sitting on the sidewalk on the east side of the State Line street; that he heard a child scream; looking in the direction of the train, he saw under the trucks the form of a man or a child and heard a man’s voice say, ‘ ‘ Stop the cars, you are running over a boy; ’ ’ that he went up around the north end of these cars, down on the west side to the junction between the first and second cars, and the boy was at the north end of the south car, the one that was connected with the north car; that the north car did not touch the boy at all, it was the north end of the south car, it was between the trucks that ran over him; that William Pope was the only one there; that after they had taken the boy out, Mrs. Jaffi first came upon the scene.
Lon Hayden testified that he was one of the switch gang operating these cars at the time of the accident; that the engine with five cars was pushed up and coupled on to' the second three cars, and then they were pushed up and coupled on to the north three cars; that when the coupling was made, the train moved very slowly and easy so that they did not jar the stationary cars or move them to amount to anything. After the north three cars had been coupled on, I heard some one halloo and ran up the track and saw a colored boy or man named William Pope pulling this boy from under the south end of the north car. I ran up there and by the time I got there, there were two or three colored boys there, they reached there before I did. There was no one else there at the time. Soon after I got there the little boy’s mother and another woman came.
Reed, the fireman, testified that he was starting to push the cars up to couple on to the other cars standing on State Line street, and the engineer stopped so suddenly he asked what was the matter, and the engineer said that from the signal someone was hurt. He went up to where the boy was lying and saw blood on the rail and on the south wheel of the north car.
Addison, the engineer, testified that he was in charge of the engine when the boy was hurt; that the cars had all been coupled together, and he then got the signal to pull back slow; that he did so, but could not. say just how far1; that he was looking back to see where the crew were and watching them because he knew that they would give him a signal to stop and directly he got the signal, he put on the air and stopped suddenly.
I. The chief contention of the learned counsel for the defendant is that the verdict in this case is against the conceded physical facts and is contrary to reason. There are numerous decisions of this court holding that where such is the case this court will reverse a judgment on that ground. There are many such cases and it is not at all necessary to make a list of them; the important matter is to determine whether this assignment of error is well founded. The petition alleged that the little boy was attempting to cross the said railroad track just north of the said stationary cars, and that these cars without any warning or notice whatever and without having any watchman or brakeman upon the north end thereof or any watchman or person in position to warn persons who were in the position of danger from the movement of the said cars,
As to the material fact, to-wit, that the car was kicked back in the public highway without any notice or signal of any kind and without any brakeman or other person being at this north end before this car was placed in motion on the street in front of a densely populated district, and that the boy’s foot was caught and that he was dragged under the car, there was sufficient evidence on which to submit the case to the jury. Indeed, as to the negligent act of kicking these cars
II. Counsel challenges the instructions for the plaintiff. First it is said that instruction number one assumed the existence of facts stated and did not leave them to be found by the jury. This objection is not tenable. The instruction begins with the words, “If the jury believe from the evidence,”- and then proceeds to submit the facts which the jury must find before they can find for the plaintiff, and in reference to the running of the car said, “and that the running and management of its cars as aforesaid, if they were so run and managed, ’ ’ etc. And in this manner the- facts were all submitted to the jury and not assumed.
The objection as to the length of the instruction, we think is without merit, for although the counsel for the defendant admitted that there was no one on the top of the rear car or near the end of it to warn pedestrians that the train was about to be moved backward suddenly, still one of the defendant’s witnesses after-wards testified that he was near the end of the car. The
The further objection to this instruction, that it was calculated to cause the jury to understand that it was the duty of the defendant to have some one in such a position as to see and warn persons who might be in positions of danger not merely at the north end of the stationary cars but those that might be between the cars or under the cars or elsewhere in places of danger, we think is clearly without merit. The plaintiff’s instructions specifically called the attention of the jury to the failure to have a watchman or brakeman at the north end or upon the ground near such north end so as to see and warn persons and children, and the whole of the plaintiff’s evidence tended to prove that it was the failure to have the watchman at the north end to warn the little boy, which the evidence showed was on the track north of the north end of said stationary cars. Standing alone, it could not possibly have mislead the jury as to the duty of the defendant. But the jury were not left in any doubt on this point, for in the third instruction given for the defendant, the court told the jury that the defendant had a right to move its cars back and forth over said tracks and State Line street, and was not required to keep any lookout for persons under or between its cars, and if deceased, Harry Jaffi, either went under the cars or attempted to pass through between them either while they were moving or standing still, without the knowledge of
III. Instructions three and four for the plaintiff are also assailed, but wherein they are incorrect is not pointed out by the learned counsel. Instruction number three submitted to the jury the question of contributory negligence of the mother in the usual and orthodox way, -and number four submitted the question of the contributory negligence of the little boy himself. Certainly the defendant cannot complain that the court submitted the question of the little boy’s contributory negligence to the jury as it was too favorable, if anything, to the defendant.
IV. Instruction number five for the plaintiff is also assigned as error. That instruction is. as follows: “The court instructs the jury that the place where the accident happened was a public street, and. that defendant did not have an exclusive right for the purpose of making up its trains or switching its cars, and that the public, including plaintiff’s child, had the same right to use the highway as the defendant had, and that defendant’s servants in the movement of its cars upon said street had no right to assume that the way was clear, but were bound to exercise ordinary care before moving such cars to ascertain and discover whether any person upon the street might be injured by such movement, but was not required to guard against persons under or between its cars.” Counsel asserts that the plaintiff’s son did not have the same right to use the street that the defendant had, that defendant had a right superior to that of the plaintiff’s child or any
Y. Again, it is insisted that the judgment of the trial court should be reversed because of statements made by counsel for the plaintiff in his closing argument. As there is nothing in the bill of exceptions showing-the alleged improper remarks of the counsel for the plaintiff, they are not before this, court for review. This has been so uniformly ruled by this court that it is no longer open for discussion.
The instructions given for the defendant were all that the law would have justified and those for the plaintiff were such as have often received the approval of this court: The only question was one as to the evidence of how the boy came to receive his. injuries and consequent death. As already said, there was a sharp conflict, indeed an irreconcilable conflict ini the evidence, and the jury resolved that issue in favor of the plaintiff, and in our opinion there was no such state of evidence on behalf of the plaintiff as would authorize this court to say that it was opposed to all physical laws and was utterly unworthy of belief. As the case was properly submitted to the jury under correct instructions and the verdict was for the plaintiff, the judgment must be affirmed, and it is so ordered.