103 Mo. App. 582 | Mo. Ct. App. | 1903
(after stating the facts as above).— The point pressed on our attention is that on the whole evidence a nonsuit should have been ordered. The argument made in support of this proposition is based on the assumption that plaintiff was crossing the track far-enough ahead of the car to have passed over -safely if he had not fallen; hence, the fall or stumble was the-proximate cause of the accident; not negligence on the part of the motorman in running at too high speed or failing to stop the car as quickly as possible after he discovered the danger of running over the boy. Several cases are cited in support of this point. Barkley v. Railroad, 96 Mo. 367; Boland v. Railroad, 36 Mo. 484; Kennedy v. Railroad, 43 Mo. App. 1; Kline v. Railroad, 2 Am. Neg. Rep. 644; Stabenau v. Railroad, 4 Am. Neg. Rep. 206; Fenton v. Railroad, 126 N. Y. 625.
We do not consider it so absolutely certain that plaintiff would have crossed the track safely if. he had not stumbled as to preclude the possibility of a reasonable inference to the contrary. The testimony of the eyewitnesses is consistent with the theory that the boy was struck on the leg after he stumbled, but before he fell to the ground. One witness said the car first hit him on the leg, then he took a -summersault and when the car ran over him, he was lying in the street. The-other witness gave about the same version, saying the ear hit him on the leg first and he went under the car. True, this witness swore he fell on the track before the car struck him; but the entire evidence allows the inference that plaintiff stumbled and before he could recover himself was hit and fell to the ground. He could hardly
What is controverted is the sufficiency of the evidence as a whole to raise an issue of fact for the jury’s decision as to whether the plaintiff, despite his stumble or fall, could have been saved from harm if the car had been moving at what was a reasonable speed considering the likelihood of children being in the street.
If an individual by some involuntary mischance, precipitates a casualty resulting in injury to himself, but was exposed to danger of the casualty by another’s negligence, the law does not always construe his own mischance, instead of the prior negligence of the other party, to be the proximate cause of the injury, and shut him off from damages. Whether the injured party will be denied relief depends on whether he. himself was guilty of negligence that proximately caused the harmful accident. There are numerous negligences that only result in mishaps because of some incident like the fall of this boy; but in which the negligence itself and not the mishap which made it potent to do harm, was the proximate cause of the harm.
In Lore v. Mfg. Co., 160 Mo. 608, the plaintiff, a girl of sixteen, slipped on a greasy floor of a factory and as she fell thrust her arm into some insufficiently guarded cogwheels and gearing machinery, whereby it was crushed. The negligence of the defendant consisted in working the machinery without having the guards in good repair, as the statute required it to have. The contention was advanced that the girl assumed the risk of slipping on the floor and could not recover; for although the machinery was unguarded, she would not have been .hurt but for her fall. In dealing with this contention the Supreme Court said the slipping was not .the sole cause of the injury; which would not and could not have happened but for another cause — the insufficient guard around the gearing; and that as plaintiff was in the exercise of ordinary care at the time she
A similar instance was Musick v. Dold Packing Co., 58 Mo. App. 322. The plaintiff therein slipped on a piece of ice, or a slippery floor, and was thereby caused to fall into a vat of hot water negligently left uncovered. The defendant complained of error because the court had refused an instruction that if the plaintiff was injured by slipping there could be no recovery; as to which the court said:
“Besides this, the negligence charged in the petition was that the defendant had maintained said vat in an unfinished and incomplete condition, etc. The facts embraced within the assumption of the instruction, if true, would not excuse the defendant from its liability to plaintiff for the injuries alleged to have resulted to plaintiff in consequence of the defendant’s breach of duty. It is true that if the plaintiff had not slipped his limb would not have been plunged into the hot water tank. It is equally true, that though he slipped, the disaster would not have overtaken him had not the tank been uncovered. The slipping was not the sole cause of the injury. The latter would not have occurred except for the presence and co-existence of both causes. The cause of the plaintiff’s slipping was altogether accidental. If it was the sole cause of the injury the defendant is not liable. But the injury would not have resulted had not another cause combined with the accidental cause. If the plaintiff was in the exercise of ordinary care and prudence at the time he slipped, and the injury is attributable to the absence of the cover over the tank, together with the slipping, then the plaintiff should recover. If the direct and proximate cause of the injury was the uncovered and unprotected condition of the tank, then plaintiff would* be entitled to recover though the slipping of the plaintiff contributed to the injury.”
The cases dealing with accidents to children on car tracks which we have cited from the defendant’s brief,
The vigilance and activity obligatory on the defendant’s servants to avoid hurting the plaintiff were the same in degree as rest on it generally to avoid harm to persons in city streets, that is, ordinary vigilance and activity ; not extraordinary. Although less care for their own safety is exacted of young children than of individuals of full capacity, the general rule for measuring the care to be observed by others in such instances is not raised in favor of children. Stanley v. Railroad, 114 Mo. 606.
But while only ordinary care must be taken by the servants of railway companies to avoid hurting pedestrians in streets, whether the pedestrians be children or adults, greater precautions are necessary in order to fulfill the rule in some instances than in others. The obligation imposed by the law is to take the care that men of common prudence take when confronted by similar situations and conditions; not what men of extreme prudence might take. Frick v. Railroad Company, 75 Mo. 595. What precautions á man of ordinary prudence, will take'to prevent a catastrophe, depends on his knowledge of facts which suggest the probability of a catastrophe ensuing unless means are adopted to avert it; and suggest, therefore, as well, the adoption of such means. Bowen v. Railroad, 95 Mo. 268; Quirk v. Rail
In Frick v. Railway, supra, it was held that although a railway company is hound to use ordinary care, both in the country and in towns, to avoid hurting travellers or running over them, greater pains are needed to comply with that legal requirement in town than in the country, because the risk of such accidents is greater on city streets than on country roads.
In Stanley v. Railway, supra, which was an action for the death of a minor child, the above principles were declared, the Supreme Court saying of the rule requiring ordinary care:
“It is one that enables each jury in each recurring case, to say after a careful survey of all the facts, whether a party has used that care that an ordinarily prudent person would have used under similar circumstances. It is one that is susceptible of practical application. It furnishes the measure required by the law and leaves to the triers of the fact the determination of the facts and fixing the liability under that rule. It is sufficiently elastic to meet the most aggravated case, or one containing the slightest negligence.”
The idea of notice, warning or data of knowledge, which will enable one using good judgment to anticipate a possible catastrophe, deeply pervades the rules fixing the responsibility for negligent torts. Indeed, one of the cardinal and general rules of the law of negligence is that the quantum of care to be observed, and liability for its non-observance, are in proportion to the opportunity of forecasting danger and knowing the need of obviating it. In commenting on a case founded on an injury to a servant caused by the defective handhold of a freight car, in which the evidence showed the defect was invisible to one looking at the handhold, but that it bore signs of age and rust that might have warned the inspector of the importance of thorough scrutiny, the Supreme Court said:
*595 “We can not formulate any rule of law fixing definitely the standard of ordinary care. Every attempt to do it has resulted in failure. What is ordinary care in one case, might he the grossest negligence in another. Amere glance at one handhold might indicate to an ordinary observer that it was safe; while, on the other hand, a glance might discover its defectiveness; and again, the conditions might be such that ordinary prudence would suggest and require a careful scrutiny.” Guthridge v. Railway, 105 Mo. 520.
It is clear that though the varied facts of different situations may not alter the legal standard of care required to avoid an accident, they often multiply the precautions that must be observed to comply with the standard; that is, to satisfy the law. It is clear, too, that warning or foreknowledge plays an important part in fixing the responsibility of a person accused of negligently doing mischief.
But the warning which fastens liability if mischief is not prevented, because it affords an opportunity to prevent the mischief, may be received in different ways: If the casualty was due to the collision of an electric car with an individual, the motorman may have been warned by discerning the person walking on the track ahead of the car, or about to drive on it oblivious of danger, or lying asleep on it. In either' of those emergencies, or others which may arise, the motorman must stop his car before reaching the exposed party, if he has time to do so after discovering the perilous position; as has been decided with wearisome repetition. That is equivalent to deciding that liability falls on street railway companies if a motorman operating one of its cars neglects to get the car under control as soon as he can after he knows, or ought to know he must do so to save life or limb. Aldrich v. Transit Co., 101 Mo. App. 77, 74 S. W. 141.
Now if a carman knows a street crossing will be thronged with school children at a certain hour of the
“If the gripman had been on the lookout, as this instruction said it was his duty to have been, he would have seen those children on the sidewalk; and if, as he said, the buggy obscured his view, he ought reasonably to have apprehended that some were likely or liable to emerge from behind that obstruction when the crossing of Lemp avenué was reached, and if he had been on the watch for them, and holding his train in control, the probabilities are the child would not have been killed.”
The operator of the car which struck the plaintiff was accustomed to that run, knew a swarm of children poured into Newstead avenue and over the crossing at the hour he was passing and could see for a long distance that there was no policeman on guard as usual. The testimony of two eyewitnesses bore sufficiently on the speed of the car to warrant the inference that it was excessive, the facts considered; since both of them swore it wa.s running fast and one that it was running “awful
In dealing with a similar litigation, the Supreme Court of Kansas said:
“It would be difficult to conceive a more reckless act than that of driving street ears at a rate of twelve miles an hour into a swarm of school children just as they were leaving school. ’ ’
The speed of the car in this case may not have been that high; but there was testimony for the jury as to whether or not it was higher than it ought to have been when the carmen knew little children would be in the streets and some of them heedless of danger.
The case was well tried; the instructions given for the defendant were liberal and there was evidence for the jury as to whether the negligence of its servants was the proximate cause of the accident.
Judgment affirmed.