178 Mo. 664 | Mo. | 1903
Plaintiffs’ minor child was run over and killed by a street car of the defendant, as they allege, through the negligence of defendant’s servants operating the car.
The negligence charged in the petition was the running of the car at a greater rate of speed than twelve miles an hour in violation of a city ordinance, and in running the car at a high rate of speed against and over the child while she was walking along the track, without giving any warning of its approach, and without exercising reasonable care to avoid striking her after the servants in charge of the car saw that she was in a posi
The answer was a general denial and a plea of contributory negligence.
There are some undisputed facts in the case. They are as follows:
St. John avenue is a public street in Kansas City, running east and west; Jackson street, running north and south, crosses it at right angles; Elmwood avenue, which is parallel with and east of Jackson street, also crosses St. John avenue at right angles. . The distance from Jackson street to Elmwood avenue is half a mile, and there is no other street crossing St. John avenue between those two. St. John avenue is the only open thoroughfare running east and west through a section about a mile wide, and it is, therefore, a much-used highway for people living in that part of the city. ' The defendant maintains a double-track street railroad along the center of St. John avenue. Between Jackson street and Elmwood avenue, St. John avenue is not paved or sidewalked, except a sidewalk in front of the plaintiffs ’ premises, and except that along the center of the street, a space sixteen feet wide in which is laid defendant’s tracks, there is a surface of broken stone and granite. In consequence of the otherwise unpaved condition of the street, the travel both for vehicles and pedestrians is along that sixteen-foot space, particularly so in wet weather when the street is muddy. People usually walked in the railroad tracks because it was better walking than on the street outside, and the children going to school took that course.
The plaintiffs ’ residence is on a lot that fronts fifty • feet on the north side of St. John avenue. From the west line of plaintiffs’ lot to the east line of Jackson street is 208 feet. Farther to the east is the residence of Mr. Owen; from his house to Jackson street is 660 feet. Elmwood avenue is still to the east of Mr. Owen’s house.
In addition to the above undisputed facts, there were other facts about which there was conflict in the evidence, the testimony for the plaintiffs tending to show that the facts were one way, that for the defendant another. If the facts were as .the plaintiffs’’testimony tended to prove they were, the plaintiffs were entitled to recover; but if the facts were proved to be as the evidence relied upon by the defendant tended to prove, then the verdict should have been for the defendant. The verdict was for the plaintiffs for $5,000, and judgment accordingly, from which the. defendant appeals.
I. The question in the case, in our judgment, is one of fact. The principles of law governing it are well settled, and there is little if any real difference in that respect between the learned counsel.
Appellant contends that the testimony shows that these two children were walking on the north side of the north track at a safe distance therefrom as the car approached behind them, and when it had reached within ten or fifteen feet of them, they appeared by their movements suddenly to design crossing the track, and, as if with that purpose, did step on the track within that distance of the ear when it was going at its usual speed; that the motorman immediately saw the movement of the children, and did everything within his power to stop the ear, but it was impossible to do so; the boy escaped with a scratch, but the girl was crushed beneath the car. There was evidence tending to prove that these were the facts, and the jury were instructed that if they found those to be the facts their verdict should be for the defendant.
We do not attach any inaportance to the fact that the plaintiff's’ testimony tended to show that the car was running faster than twelve miles an hour in violation of
The general rule of law that a plaintiff can not recover damages for injuries sustained by him when his own negligence has contributed with that of the defendant to cause the injuries, has one exception, and that is, if the defendant before the injury is inflicted discovers the peril (or in some cases, even where by the exercise of ordinary care the defendant might have discovered it) and has it in his power then and there by the exercise of ordinary care to avert the injury but fails to do so, he is liable. That is the law in this State, so declared in Kellny v. Railroad, 101 Mo. 67, and iterated in Morgan v. Railroad, 159 Mo. 262.
The facts which the plaintiffs’ testimony tends to prove bring this case within that exception, and for that reason the court did not err in refusing the instruction asked by the defendant in the nature of a demurrer to the evidence.
There is one other ground assigned by appellant why the demurrer to the evidence should have been sustained: that is, that there was no evidence to prove that the deceased was unmarried. It is true the record shows no evidence offered on that point, but it would be so improbable that a child, not quite twelve years old, living with its parents and going to school from their home, was married, that we should presume the contrary in the absence of any suggestion to the trial court that proof on that point was desired.
The criticism of the action of the court in the giving and refusing of instructions are all based on separate
We find no error in the record and the judgment is therefore affirmed. All concur.