214 Mo. 530 | Mo. | 1908
Lead Opinion
Plaintiffs, the parents of Oscar McGee, a minor killed by one of defendant’s passenger engines at a railroad crossing, known as Long’s crossing, in Daviess county, grounding a cause of action on the negligence of defendant’s train servants, sue to recover the statutory penalty of $5,000.
At the close of plaintiffs’ case in chief, the trial court gave defendant an instruction in the nature of a demurrer to the evidence. Thereat, they took a vol
The petition counts on the following specifications of negligence, viz.: (1) A negligent failure to give the statutory crossing signals of hell or whistle. (2) Running its train at a reckless and dangerous rate of speed, environment considered. (3) A negligent failure to avoid the death of Oscar after defendant’s servants running the locomotive and train saw, or by the exercise of ordinary care and diligence could have seen, him in peril in time to have saved his life.
The answer is a general denial coupled with two allegations of negligence, viz.: One, an averment of Oscar’s contributory negligence in attempting to cross defendant’s railroad track without looking or listening for the approach of a train — the other, the negligence of plaintiffs in permitting Oscar to so cross defendant’s track.
The reply was conventional.
The case on the facts is this:
Oscar McGee was the rise of thirteen years in age. Plaintiffs’ counsel submit the case to us on the theory that he was a bright boy for that age and endowed with all his natural senses. He was shown to be familiar with railroad tracks and the running of trains. His father on cross-examination was asked: “Q. What caution did you give your boy about the train?” His answer was: “Well, I did not give him any particular caution, for I never knowed him to ever fall or play or stay around here, because he was very careful and scary of a train; it was hard to get him to go about a train, something that he never did to my knowledge and I never thought to caution him.” His mother on cross-examination was asked: “Q. What warning did you give him about the train, if any?’’ Pier answer was: “I did not give him none for he did not need it; he was afraid of a train; he
Long’s crossing is in the country. There, defendant’s track runs north and south, cutting the Gallatin and Jameson public dirt road at right angles and very nearly on a grade — the dirt road elevated a trifle to make it. The situation at Long’s crossing is but dimly outlined in the testimony. As well as we can make out, at a distance north of the crossing was a hill or ridge on the east side of the track — the latter hugging the foot of the hill and leaving a flat country on the other side, at that time a cornfield. We infer, too, that the track cut into the foot of this hill (broken by draws) at intervals north of the crossing. Whether there was a cut at the crossing is not clear, but we infer there was none. However that be, because of the hill towards the north and because of a curve, or curves, in the track to the north, a person standing at the east rail could see four hundred feet up the track and standing six feet east of the rail such person could see from forty to one hundred feet up the track.
The McGees lived north of the Gallatin and Jame-son road. From their house to the front gate on the road side, it was twenty or thirty feet. From this front gate west to Long’s crossing was, say, one hundred feet, and this front gate was, say, fifteen or twenty feet higher than the railroad track. The McGees were renters and had lived in that house but a week prior to the accident. They used the time schedule of trains to correct their clock and the family were familiar with the time of regular trains. The train in question was á regular passenger train running south and due at Gallatin south of the crossing’ at 4:03 p. m., making it due at the crossing at about 4 o ’clock. Plain
On said date Oscar was with his father at the barn repairing a log wagon. At a certain time the father told him to go to the cornfield with a message to his elder brother, Aubray, there cutting corn. To carry it, he went from the barn to the house, from the house to the front gate and there turned west on the dirt road towards the crossing. Hearing of his errand, his brother, Roy, aged, eleven, got leave from the mother to go along. There were two eye-witnesses to the accident, the engineer and Roy. The engineer testifies he was at his post of duty looking out ahead and that his first glimpse of Oscar was as the boy got almost to the west rail and- the “instant” f the pilot picked him up. Another step or so would put him safe. Roy testifies that as he got to the
II. It has always been held by this court that in the country, between stations, away from congested populations, it is not negligence for passenger trains to run at a rapid speed over road-crossings. If this long-established and well-known interpretation of the law was not satisfactory to the Legislature, it must be conclusively presumed that it would have taken up the question of rapid transit under the modern demands of commerce and established a legislative rule regulating train speed at country crossings. The allegations of the petition in that regard stated no cause of action under this proof.
III. Nor, on this record, did plaintiffs make a case for the jury on the allegation in the petition involring the humanitarian rule or the last clear chance doctrine, viz.: that defendant’s servants saw or by the exercise of due care might have seen Oscar McGtee in peril in time to have thereafter saved his life by the exercise of such care. This is so because that doctrine seizes the actual facts as they exist. It proceeds, for instance, on the assumption in this case that Oscar was negligent in getting on the track without looking or listening, and that defendant’s servants were negligent in not giving the crossing signals. It assumes the actual rate of speed the train had. Assuming all those things, then, out of the law’s tender regard for lifé and limb the doctrine
Learned counsel, as we see it, do not contend that the engineer was negligent in not stopping the train and that the humanitarian rule applies to his conduct taken by itself. Nor could they well do so; for the uncontradicted testimony is that the boy appeared in his line of vision not more than fifty feet from the pilot. Oscar had then passed over the east rail and was almost to the west rail. Obviously the die was cast and neither distress whistle nor emergency brake would have saved the situation. The engineer described it by saying that he only saw Oscar at the “instant” the pilot picked him up'. A train going fifty miles an hour would ¡cover fifty feet in less than one second, hence the engineer’s use of the word “instant” is justified. It was literally an instant; and before eye could see, brain conceive and hand execute that distance would have been covered by the locomotive.
Counsel, however, lay stress upon the fact that the fireman could see the boy three hundred or four hundred feet away. Relying on the. theory that the fireman was negligent, they argue that they had a case for the jury if the train could have been brought to a standstill or slowed down in that distance so that the boy might have escaped. There is no testimony the fireman actually saw Oscar that distance away, or at all. A locomotive fireman has manifold duties to perform and no case has come to our attention going so far as to hold that the duty of the fireman is to glue his eyes on the track ahead of the engine at every single instant of time. The law could not well be written that way. We know a locomotive fireman does not run the locomotive. We know such to be the engineer’s duty and that he alone holds the mechanical
IV. With the contributory negligence of the parents, on the one hand, and the humanitarian doctrine and rapid speed, on the other, out of the case on appeal, a consideration of the remaining assignments of error may proceed on the theory: First, that it stands conceded Oscar was killed by defendant’s train at a railroad crossing; and, second, that the burden was on plaintiffs to show that defendant’s servants
It is a general principle in the law of negligence that plaintiff must show by direct or inferential evidence that the negligence complained of produced the injury sued for. But this is not so (as presently seen) in crossing cases where there is substantial testimony that the crossing signals were not given. It is argued on behalf of defendant there is no substantial evidence the signals were not given. But we do not read the record in that way; because:
Having put in proof by some of their witnesses that the signals were omitted, plaintiffs may not be cast as a matter of law because another witness of theirs, the engineer, testified they were given. It was the province of the jury to settle that conflict between plaintiffs’ witnesses (Knorpp v. Wagner, 195 Mo. l. c. 661), and the mandatory instruction could not be justified on the engineer’s testimony alone. This being so, on demurrer the most favorable view of the testimony must be taken, and we may assume there was evidence tending to show the crossing signals were not given. If we add to that the conceded fact that Oscar was killed, this state of proof under ■ our statute made out a prima-facie case for plaintiffs. [R. S. 1899, sec. 1102.] That section contains this clause: “And said corporation shall also be liable for all damages hereafter sustained at such crossings when such bell shall not be rung or such whistle sounded as required by this section, provided, however, that nothing herein contained shall preclude the corporation sued from showing that the failure to ring such bell or sound such whistle was not the cause, of such injury. ’ ’
Under that statute, plaintiffs were relieved from proof that the failure to ring the bell or sound the whistle was the proximate cause of the injury. The statute
The. contention is therefore ruled against defendant.
V. Though the burden is put by statute on defendant to show that the failure to ring a hell or blow a whistle did not cause the injury, yet in carrying that burden defendant need not introduce testimony of its' own to show that a failure to give the crossing signals did not cause the death of Oscar; for it is settled law that such fact may appear from plaintiffs’ own proof. For example, plaintiffs’ proofs may show that the injured party was guilty of contributory negligence coincident and concurrent in time and place with the negligence of defendant and when that is made to appear an action cannot be maintained. [Green v. Railroad, supra.] “The rule, however,” says Thomas, J., in Crumpley v. Railroad, supra, “in regard to contributory negligence of the injured party remains the same in this class of cases as in others.”
Now, in the case at bar, plaintiffs put in uncontradicted proof from an eye-witness, Roy McGee, that Oscar in broad daylight walked upon defendant’s railroad track before a rapidly approaching passenger train without looking and apparently without listening, when to look was to see and to listen was to hear.
But he was not an adult and, at last, the pivotal and sole question in this case has come to be this: Could the court as a matter of law impute negligence to Mm? Was it for the judge on the bench or for the jury in the box to say he was negligent on the undisputed facts ?
VI. When an issue of fact is framed and put to a jury on the question of the negligence of a minor the general rule is to so frame the instruction as to graduate the degree of care demanded of a child to his age and capacity. That rule requires that a child should be judged as a child and not as a man. But the rule does not mean that the question is always to be submitted to a jury. Children may be declared as a matter of law non sui juris at certain tender years and with certain infantile judgments. Then, again, they may be declared sui juris as a matter of law when their age, capacity and the circumstances under which they act are all considered. It may be taken as the most enlightened and accepted doctrine in the ease of infants that generally the question of their contributory negligence is one for the jury. But it is not the accepted doctrine that it may not under given circumstances be dealt with as a matter of law. If the facts are few and simple, devoid of confusion and complications, and if the danger to be avoided is so apparent as to be within the easy comprehension of a boy of thirteen years of age, if that boy is shown to be of bright intelligence and of a judgment training him to caution and care in the matter in hand — we say all these things being admitted, then there is no reason why the judge on the bench may not as a matter of law under the facts of the given case declare there could be no two opinions among reasonable men about the negligence of such a boy measured by the standard
It is not necessary to overload the case by excerpts from opinions. It is sufficient to say that the
We find no fault with the ruling on the mandatory instruction. It can be sustained on the ground of contributory negligence of Oscar deduced from the evidence of plaintiffs’ witnesses.
Let the judgment be affirmed. It is so ordered.
Dissenting Opinion
DISSENTING OPINION.
I dissent from the opinion in this case for the reason that it overlooks the rule that, in asking a demurrer to the evidence or a peremptory instruction to find for the defendant, the instruction admits as true every fact which the evidence in the case tends to prove in favor of the plaintiff. With that rule in mind let us see if the deceased boy was guilty of such negligence that a court should declare as a matter of law plaintiffs cannot recover.
The opinion states that the evidence shows that one standing sis feet east of the track could see the train approaching from forty to one hundred feet. That being true, then the jury would have been warranted in finding that the boy could not have seen the train for a greater distance than forty feet before it reached the crossing.
The opinion also states that the engineer testified the train was running about fifty miles an hour,
This is putting the evidence in the most favorable light for the defendant, but under the instruction it is our duty to look at it in the most favorable light for the plaintiffs; but instead of doing so, let us view it in the most unfavorable light. Suppose, instead of deceased being able to see the train approaching only forty feet away when he was within six feet of the track, he could have seen it one hundred feet away, as some of the testimony tended to show. At that rate the train would have reached the crossing in exactly two seconds, and the deceased would have walked about nine feet, which would have placed him beyond the center of the track. The evidence is undisputed that just at the very instant he reached the center of the track the engine struck and killed him.
Now, we have the situation in the most favorable and most unfavorable light to plaintiffs; and I submit that to declare as a matter of law that a boy of thirteen years of age by not stopping and avoiding coming in contact with the train after he was within six feet of the rail and less than four feet of the line of the passing train is guilty of contributory negli
He was but a lad of tender years, with no cares or responsibilities resting upon his shoulders, unmindful or forgetful perhaps of the railroad and the train, and doubtless with his mind absorbed with the errand he was running for his father to his brother, approached at a brisk walk a railroad, the view of which was so obstructed he could not see the approaching train until he was within six feet of the track, and doubtless the hill which obstructed his view muffled its sound so that he did not see or hear it, and, consequently, apprehended no danger, but all at once the train hove in sight, approaching him with lightning-like speed, without warning. Under these conditions he had no time to realize the jeopardy he was in, much less to extricate himself from the imminent and impending danger that threatened him. That situation and danger caused by defendant’s negligence would have naturally frightened and confused boy or man to such a degree that he should not be judged by the ordinary rules of contributory negligence, but should be required to use such care and caution only that a person in the same situation would have done. [Siegrist v. Arnot, 86 Mo. 200.] Especially that should be the rule when applied to boys no older than this one was.
In my judgment the evidence made a clear case for the jury, and for that reason in my opinion the action of the court in giving the demurrer to the evidence was reversible error.