115 Mo. App. 582 | Mo. Ct. App. | 1906
— The plaintiff sues for damages, the alleged result of the negligence of the defendant company for injury inflicted upon his minor daughter, Preda Lange. The place of injury was at Emma, a station on defendant’s railroad near the boundary line between Lafayette and Saline counties. There is no depot building at said station, but there is a platform made of cinders for the use of passengers arriving and departing on defendant’s train. The railroad runs east' and west. A public road crosses defendant’s tracks a short distance east of the said platform. The distance between the main and switch tracks is about twenty-six feet.
It was shown that Preda, a little girl nine years old, on her way home from school in company with fifteen or twenty other school children stopped at the station to witness the departure of their teacher west on a passenger train then about due. When the passenger train arrived, the freight engine with cars was standing on the east end of the switch track. After the passenger train
The brakeman on the car had his face turned west and plaintiff’s evidence tended to show that he could not avoid seeing the children on the track ahead of his car and their perilous situation in time to have avoided striking Freda unless he had closed his eyes. The car was moving slowly and the evidence fully justifies the belief that at its rate of speed, under proper control, it could have been stopped in time to have avoided the injury by the exercise of the necessary diligence.
The car in question was shunted on the side track by what is known as the flying switch method, which was shown to have been against the rules of the defendant company, because it was dangerous. [Baker v. Railway, 147 Mo. 158.] Three persons, testifying as experts, stated that a car going at four or five miles an hour could have been stopped in four or five feet, and going at the rate of three miles an hour almost instantly. This evidence is characterized by defendant as absurd and unworthy of belief. And the argument is illustrated in the following language, viz.: “With a brakeman standing at his post on top of the car and seeing the girl step on the track before he could catch the brake, he could
There was evidence tending to sho w that the engineer was blowing off steam to frighten the children and that he was enjoying their discomfiture. If that was true, it was culpable negligence upon the part of the engineer, for there is no question but what blowing off steam frightened the girl and caused her to step upon the side track, where she was injured.
A more detailed statement of the case in reference to the facts just prior to and at the instant of the injury shows that the engine, after it had stopped at the platform, was throwing out great quantities of steam, which reached among the children, creating confusion among them, and in order to evade it two' of them and plaintiff’s daughter unwittingly stepped onto the switch track ahead of the moving car, which had no1 means of warning them of the danger, except that given by the cries of the bystanders and the brakeman in charge of the car. And there is evidence that the engineer knew that he was causing confusion and alarm among the children present. According to his statement, he could have controlled this escaping steam at the time, and that none escaped. But his evidence as to the latter statement was contradicted by several witnesses, as already shown. Under the state of the proof, if believed, and that was for the jury, the girl was not guilty of con-
The court submitted two instructions to the jury in relation to the negligence of the girl in stepping upon the side track in front of a moving car, to the effect that, if the jury found that, by reason of her youth and inexperience, “she was not aware of the danger to which she was exposed in doing so; then the jury will take this into consideration in passing upon her alleged negligence.” The instructions were proper. The evidence tended to show that she was timid, inexperienced, and unaware of the danger of her surroundings, and that she was confused and alarmed by the acts of defendant’s engineer‘in blowing off steam. It was therefore a question for the jury to determine whether she was guilty of contributory negligence. A similar instruction, under like conditions, was approved by the court in banc in Schmitz v. Railway, 119 Mo. 256. Our attention has been called to the case of Lynch v. Railway, 112 Mo. 420, where it is alleged that a similar instruction was condemned. But the instruction in that case was held to be faulty because it assumed that the boy ten or twelve years of age was of imperfect discretion. Here, however, the jury is required to find that the girl was deficient in discretion. In any view of the matter, we are to be governed by the later decision.
But notwithstanding the question of the daughter’s negligence was thus submitted to the jury, the court by instruction No. 2 practically told the jury that she was guilty of contributory negligence and that plaintiff was entitled to recover if it found that the hrakeman saw her on the track in time to hare averted the danger. While this instruction is seriously defective, it has escaped the criticism of the defendant in its argument and
Defendant complains of the action of the court in refusing to give the following instructions: “The court instructs the jury that there is no evidence that Freda Lange was at the platform of defendant at Emma station on the occasion of being injured except merely as a matter of pleasure, amusement or curiosity, and that when the passenger train pulled out, it was her duty to leave and the defendant was under no obligation to her after she remained there except it was bound to use reasonable care not to injure her after any of its agents or employees saw her in a position of danger, and that in no event was she permitted to step upon the tracks of the defendant and in doing so did so at her own risk and peril subject merely to this exercise of reasonable care of the said employees not to injure her after seeing her in a place of peril.” The court added the following and then gave it to the jury: “Unless you believe from the evidence that said Freda Lange was frightened by the discharge of steam from defendant’s engine and that her attention was on account so diverted as to cause her not to notice the car approaching her on said track.” The instruction as asked is upon the theory of what is known as the “last-chance doctrine,” leaving out altogether the question of defendant’s negligence in using the flying switch, as referred to, and the act of defendant’s engineer in letting off steam, causing her alarm and confusion. The only error the court made was in not
There was evidence that persons present, who saw the girl’s peril, cried out, warning her of her danger, but the evidence indicated that she either did not hear or understand such warning. In said instruction No. 3, as well as No. 2, the defendant asked the court to say to the jury, if the girl did not heed the warning, she was guilty of negligence and plaintiff could not recover. The court refused to give them as asked and inserted in one the words, “if any such hallooings and warnings were given and heard by her;” and in the other, the words, “if any such warning was heard by her.” The defendant contends that this was error and cites Baker v. Railway, 122 Mo. l. c. 549-595. The citation on page 595 is from the dissenting opinion of Judge Sherwood, and that on page 549 has no application. But it is held in cases of this kind where the warning is not heard it is not an available defense. In Baker v. Railway, 147 Mo. 160, where a “flying switch” Avas made, the court said: “The brakes were unset, it may be to get the necessary speed, and when he sees plaintiff’s danger, he sets the brakes and stops the cars a hundred yards too late. True he yells or whistles, but he says it did not warn her. Counsel say that there is no statute against doing what it did at this time, and that there is no penalty incurred as in case of an engine going across a road Avithout ringing a bell or sounding a Avhistle. Í agree with them, but when they say that it follows from this that if an engine is not used, and ears alone are run across, that therefore in such case it need give a less effective warning to the traveler, I say it is a non sequitur. '' If the danger is increased by its neglect, I can not see why the law should for that reason suffer a less effective warning.” It is true that the decision is applied to road crossings, but we see no good reason why it should not apply to a case like this, under the circumstances detailed.
The amount of the verdict of the jury is attacked as the result of prejudice and passion. The amount returned was $1,372. The plaintiff remitted $31 of the amount, in order to make it correspond with the proof. The medical, surgical and nursing bills alone amounted to over $500. Proof of loss of services was over $800. We do not feel warranted in disturbing the verdict, under the circumstances.
Other points are made, but as they are not essential, we will not give them notice. Affirmed.