*1 411, Co., v. Terminal 161 Mo. 513; Anderson 43 Mo. Ins. 419; v. Loring, McGinness 404.] ruling against of the trial charge error is directed further newspapers, from local admitting in evidence advertisements were, purchase from note subsequent to of which some admission this evidence think the We Hanna defendant. relations between bank business tending to show the as proper testimony institutions; was other tend- and there allied incorporation the time so allied ing to show bearing complained of direct company. the trust error of find no reversible record We points issue. the vital concurs; P. Bland, J., Trimble, J., absent. judgment is affirmed. the. Henry v. F. H. Others, Respondents, al., et Klusman, Appellants.* City Appeals. June Court of *Corpus Juris-Cyc Appeal Error, 4CJ, References: section 17CJ, p. 530, 235, p. 1350, 68; Courts, 15CJ, 308, p. 8; n. Death, section n. section Servant, n. Master 39CJ, 1590, p. 1360, section n. Trial, 38Cyc, p. 1694, n. 58. *2 respondent. Otto A. B. Imbersteg, Raez and W. B. for W. Norris Shultz & Owen appellant. for
WILLIAMS, in brought C. This is the circuit court suit a county six-year-old plaintiff’s Buchanan recover to for death of day son who was May, killed on 13th alleged, jury boy found, and the death of the pulled wagons
the result of run over train a tractor a public city a Joseph. of St. street engaged It seems that in the collection the defendants were doing garbage business over, at the run and were time the child was partners Company. Disposal the name Brothers under When wagons collecting garbage. Steel or trucks were used wagons and collected were loaded be tongue wagon by hooking one to the rear would form a train to A and train connected another. tractor was front hitched tractor, way wagons and such a were moved. wagons comprised six At the train the time child was killed block, traveling rate at the which extended almost one-half and feet wagons about ten eighteen twenty an hour. The were miles loaded, Garbage pounds. long weighed and each when about year for a before the been hauled in this manner about killed. where street, not public Fourth far
The school was located on along wagon casualty train traveled It seems as occurred. going to school. children were about the time the Fourth street off on and getting and habit of out children had been in the playing children wagons, it this train of. and seems boy was year before the wagons a for least on-these killed. driving the driver, had seen the same A testified witness -he year.” a tractor “around of children a number Csonke, he witness, testified saw John killed, shortly this child wagons before
playing around the twenty eighteen wagon traveling- about miles train was they the side children on three or four that there were hour testified wagons. Witness starting up tongue of climb said and he turn around get his seat and up he saw driver 11'12
something but he boys did not know “hollering whether he was or not” that stop driver did not boys after off hollered and before the ehild was killed.
Another witness testified that the driver told the children to off and then turned around and went on. The driver testify of the truck did not defendant stood demurrer.
The ease was submitted jury to the jury, the returned a verdict for $7166.67. After an new unsuccessful motion trial defendant appealed. has original
In the by appellant, brief filed the doctrine of the attrac- very tive ably nuisance is discussed. The however con- cedes in his brief doctrine, that he cannot recover under this places squarely upon his case doctrine, the humanitarian that doctrine he elects to stand or fall. *3 by appellant first contended that the demurrer at offered the plaintiff’s
close of case should have been sustained. appellant reply many his brief cites and ably eases discusses them. However, the propositions concedes the of law laid appellant. down the cases example, cited For Giles v. App. Railroad Hall 219 27; 586, 587; Mo. v. Railroad, Railway Company, Youmis Ry. v. v. Stewart Co. (Mo.), 272 S. W. but contends case of Dalton v. M. K. T. & R. controlling. S. W. opinion
The facts in the Dalton Judge case set out the of Graves, are:
“In yards part Mo., the switch northern Hannibal, the of is a running bluff, track near the which track is the west track of those yard's. ro.ad, public the of To west this track is a and across this road, a bluff, close into the store and some residences. These yards quarter switch length, are a of a mile or more in and lie between public Mississippi road and above mentioned river. Plain- upon standing upon tiff and another were a car then this west yard (near thereof), switch track the north end and he was knocked together coupling of therefrom the force a of other cars with the bunch cars where In fall located. car both he was thrown under the wheel and arms cut off. attempt plaintiff being In an a obviate the tres- alleges passer (pure great length sundry simple), petition uninclosed; alleged yards usages, said switch were as follows: That. along public road obtained their water from that the inhabitants river; yards spring that in the for a near the river and from the some years digger, had a which was attractive to children there been sand n whenit years a' there had operation; for number been in- citizens, yards by a constant and continuous use these store) cluding dwellings children; (opposite there was these boys swimming pool a in the river which was much used yards; that boys season accident, daily of this crossed these these years yards by public for there had of these been continuous use yards them; years going through that for these north south playground; continuously as a been used children around, and continuously in, especially boys, children and had knowl- yard; standing in that defendants the cars this switch edge all these conditions.” pri- in the R., supra,
In Dalton M. K. & T. R. the deceased him yards make would defendant, vate switch and this fact alone was rid- pure deceased trespasser simple. In the case at bar the make ing tongue wagon. Standing alone, this would tile pure simple. him a trespasser proof use of of the continuous
In the Dalton ease there was around the ears in, upon and yard by boys played switch yard. standing in the switch year children for a
In ease at shows that bar Chil- wagons. tanks or getting off of the train of on and wagons and ride on run and in between dren would which tractor tongue. known driver of This fact was morning stopped and very he had wagons. That hauled the children hollered at other evidence that he There is some children off. run over. shortly the deceased before user continuous case the court held Dalton lookout. require the railroad
impute and would notice *4 position in boy was the or not question then arises whether The wagons between six old peril. child imminent of pounds wagon weighing about together, joined each in certainly be most hour, an would twenty miles eighteen to going prob- was wagon was the peril. speed at which The imminent got voluntarily off or if he run, and could child ably faster than the almost be wagon it would tongue of the accidently slipped off of the escape to wagons in time the from between pass for him to impossible injury. to peril communicated imminent boy in this that Was the fact ordinary of by exercise injury the have avoided in time to the driver care? and look up in his seat driver saw the he witness testified One that wagon boys getting the saw back, witness and at that time saw hour; witness that twenty an miles going wagon about the eight between seven or and saw wagons along by boys running the wagons. jury
We think under this evidence was made that a case for the under the humanitarian rule, and that evidence carries the this case as far as Dalton v. & if R., M. T. R. Even the case supra. K. of Dalton M. & supra, v. K. T. doctrine as is said R.,R. extends the by Judge Ferris, dissenting majority opinion in his in opinion, the that binding upon case is court.
It by plain- is next contended that the instruction tiff is in question negligence erroneous it primary that submits the of as well as the humanitarian doctrine. part of complained
That the instruction of refers failure of driver ordinarily defendant’s to prudent person use care that used, dangerous position have moving refers to the and the continuing or in wagons motion of the and submits the fact as to whether likely fall and in instruction same submits of user and notice. We think being instead of in law in conflict with Dalton v. M. K. & T. R. supra, it follows laid down the rule as exem plified by the following quotation:
“It must be conceded under that it the facts shown was de- duty -by fendant’s children, lookout the exer- ordinary cise of plaintiff position care it could have in a seen the of peril ordinary time have of averted the accident the exercise care, fact, or if the defendants, as did him time to have see avoided the accident care, exercise of then ordinary are liable, notwithstanding negligent the fact that was' where was at the time the accident. This is the humani- tarian rule.” petition is next
It contended that does state a not cause action allegation reason of notice. No assault petition made general allegation trial court. The Snyder Wagner notice is sufficient. we Elec. think petition under this rule the is sufficient.
The is $7166.67 made that excessive. verdict is said in the case of l. c. 691: O’Neil, McGraw v. “Pre sumption strongly right jury in favor action any mistake; and excess the verdict the result of honest where has trial it is verdict received the sanction attended presumption judge with the further exercised discretion soundly passion prejudice.” saw nothing him of to convince difficulty producing sustained as to the loss *5 great dependence death of a child of is must be tender so that extent, knowledge least, experience placed, to some jury.
1115 court, and, in The verdict in had of the trial this case the sanction feel presumption O’Neil, supra, we do not view of the in McGraw v. that we should disturb it. should be set aside appellant
It is contended that verdict judge jurors. reason The trial of the of one of the misconduct interfere. We see had the him and refused to whole matter before upon ruling reason trial court no to interfere with of the question. complaint by appellant
In answer to that the instruction made damages erroneous, will concede measure we instruction general. instruction asked no However, appellant is damages the neces attempt on out the measure of and did not sary language instruction supply elements erroneous. given. In was not this state of the record this instruction 27 Tabor v. [Browning v. Wabash R. R. S. W. Boles, v. Missouri Pacific R. S. Wheeler W.
character not show what as to cause reversal. The record does necessary haec actually said. is remarks be set out attorney appellant verba. this the record shows that the ease Nor- said: to show that Schultz: We desire the record “Mr. Mr. ‘Maybe argument, states in his driver of the tractor ris produced you had told been he would told that he have there, remark, object should another man on and that we ” prejudicial.’ being improper objections “let and that it said, The court the record show the ’’ overruled. down in Edwin Church to meet the rule laid This does not seem City, Appellant, Friend, Respondent, v. man, next App. 366, l. c. 370. case of Milliken
Again this was before law “It is a well-settled Larabee, the court said: S. W. during progress that, of counsel in this whenever remarks State fact which of a material a misstatement of the trial shall amount to necessary prejudicial, it is opposing counsel as considered alleged objec- objection party’s remarks be noted to the specific of the trial court to tionable, call the attention and to objection based, the court be re- and. that ground which the adminis- the court not therefor, and should quested to counsel rebuke court’s fail- except proper should then rebuke, counsel ter the done, our this have been record shows rebuke, and unless the ure to grant trial on will not .a new except cases, courts, in extreme ’’ ground. *6 point urged
The last by defendant is that there was no evidence that the driver was in employ acting of defendant or that he was scope in the employment. that on all The evidence shows wagons being hauled appeared Disposal the words “Harper Brothers Company,” and driving that the driver the truck about year. covering
The rule Supreme contention well stated Court of the State of Connecting Illinois of East St. Louis case Ry. Altgen, Co. v. 377, says: N. E. l. c. in which the court - “It is first contended there is no evidence in the record that engine and injury belonged ears which caused the to the defendant or were being operated by under the control or its servants 'the injury. time of the question only, That contention raises fact and, if any fairly there tending evidence in the record to establish fact, then it court, upon question, was not error for the refuse jury. engine to take the case from the is conceded that the against which backed the cars which the locomotive injured Ry. at the he was ‘E. St. L. C. time was marked which, Co.,’ corporate placed by was the abbreviation of its name engines. defendant all its The defendant introduced no evidence upon the ownership engine, of the of. said or whose servants operating injury. the same the time of the Such record, engine injury state the fact that the which caused the company bore the name of the was sufficient evidence of defendant ownership, possession and that were in servants thereof, question go the court to let the case .authorize jury.” support in C. Brooks v. Missouri Pa This rale finds the ease of B. Railway Company, l. c. 177. We think cific Judgment G., Frank, taken. affirmed. concurs. is not well opinion by Williams, adopt- foregoing C., CURIAM: The PER concur; opinion Bland, J., Arnold, J., court. ed as the Trimble, J., P. absent. City Light Power & Com Respondent, v. Kansas Ballard,
Joe Appellant.* pany, City Appeals. June Court of