166 Mo. App. 439 | Mo. Ct. App. | 1912
— This action was originally brought in the circuit court of the city of St. Louis, by the father and mother, under the. provisions of section 2864, Revised Statutes 1899, to recover $5000, the penalty given by the section, for the death of their infant daughter. The case was taken on change of venue to the circuit court of St. Louis county. The father died pending the action and it has since been prosecuted by the mother. The accident and the death occurred on the morning of the 15th of May, 1900.
It appears that this was the second trial of this case in the circuit court, there being a verdict for defendant on the former trial, which the trial court set aside for error in instructions given for defendant. Defendant appealed from that to the Supreme Court where the action of the trial court was affirmed and the cause remanded. [See McNulty v. St. Louis & S. F. R. Co., 203 Mo. 475, 101 S. W. 1082.]
This second trial was before the court and a jury and there was a verdict in favor of defendant. Judgment followed from which plaintiff appealed to the Supreme Court, the amount involved at that time exceeding the jurisdiction of this court. Pending the submission of the cause to the Supreme Court the
At the instance of plaintiff the court gave seven instructions which appear to be all that were asked by plaintiff.
At the request of defendant the court gave five instructions, numbered from eight to thirteen. The errors assigned are to those numbered nine, ten and eleven. The correctness of instruction No. 9 is the principal point of controversy on this rehearing. We, however, reproduce the three instructions on which error is assigned.
The ninth instruction told the jury that under the pleadings and" evidence plaintiff could not recover on the charge that defendant’s servants failed to look ahead of the engine and tender to see if the movement endangered persons on the crossing and failed to stop or slow up the engine and tender before it struck the child.
The tenth instruction told the jury that before plaintiff could recover in this action “she must establish the fact that defendant was negligent in the respect or respects stated in other instructions, by the proper or greater weight of the testimony.”
The eleventh instruction told the jury that even though they might find from the greater weight of the
Taking up these instructions in inverse order we say:
First: The criticism of the eleventh instruction is that it recognizes the duty of ringing the bell eighty rods from the crossing and until reaching the crossing but does not require the ringing of the bell constantly until the engine passed the crossing, as required by statute, now section 3140, Revised Statutes 1909.
In Pope v. Wabash Railroad Co.,--Mo.--, 146 S. W. 790, it is said: • “The object of a signal is to give warning and if .those on the track knew of the train’s approach without the signal, in time to escape from danger, then failure to give the signal is of no legal importance.” Several cases are cited in support of this, among others McManamee v. Missouri Pac. Ry. Co., 135 Mo. 440, l. c. 449, 37 S. W. 119. See, also, Illinois Central R. Co. v. Dupres, 138 Ky. 459, l. c. 462, 128 S. W. 334. Here the failure to keep the 'bell ringing while crossing the street was wholly immaterial, for the child was struck before the engine had passed over the street. Moreover, one of plaintiff’s own instructions-cover this, for it distinctly told the jury that to exempt defendant, it must, among other things, appear from the evidence “that at the time said engine and tender ran upon said crossing the bell on said engine was rung eighty rods from said crossing and kept ringing until such engine crossed said street.”
Third: This brings us to consideration of the ninth instruction.
It is necessary to a proper consideration of this to notice the testimony more fully than we did in the former opinion.
On the morning of the day of the accident the daughter of appellant, a little girl, eight years and seven months old at the time of the accident, on her way to school, had to cross defendant’s tracks on Theresa avenue in the city of St. Louis. Her mother, the plaintiff, testifying, said of her: “She was a strong, healthy child and a wise one too.” The family had lived during all the life of the little girl within a block of and to the south of the street upon which the railroad tracks were located. “The little girl crossed these tracks every day going to school. . . . She had gone to school for a year and a half and the trains passing pretty much all the time. Told the child to be careful. She was a smart child. Let her go alone; never had thought of the railroad crossing at all.” Theresa avenue runs north and south, the railroad tracks from west to east, crossing the avenue at a right angle. Besides the tracks of the defendant railroad which there cross the avenue are the tracks of' the Wabash, the Missouri Pacific and perhaps others. The Wabash tracks appear to be south of those of the defendant and closer in toward the street pavement. The railroad companies had a watchman at this crossing.
A young lady, who was in sight of the accident but north of the tracks and on the east side of Theresa avenue, testified that she did not see the child when struck; saw her under the tender; tender was in front of engine; first saw the child when she was in the
A teamster, witness for plaintiff, testified that he was within a conple of hundred feet of the little girl when she was killed; saw the engine “come and shoot right by and pick her up and drag her right along.” The child was carried some distance. At the time the engine shot across the street and caught the child, the watchman was waving his flag “to beat the band. . . . The engine ran about 150 feet east of Theresa avenue before it stopped.”
Another witness for plaintiff testified that he was about thirty feet behind the child, driving his team; “did not see the child hit, saw her right after, lying in the middle of the street; the engine ran seventy-five or one hundred feet east of Theresa avenue before it stopped.” The engine crossed about twenty-five feet ahead of his team. On cross-examination this witness said he first saw the little girl south of the tracks; she was going north, walking by herself; she walked past him. “She was going a pretty good gait;” was a hundred feet south of the Frisco tracks when she passed his wagon; was thirty feet ahead of him when the accident happened.
This was practically all of the testimony of plaintiff and she rested, whereupon defendant asked an instruction in the nature of a demurrer which being refused, defendant excepted.
Defendant- thereupon introduced the crossing watchman, who testified that he saw the little girl coming along the street toward the crossing, on the west sidewalk. There were two gentlemen coming along with her. He raised his flag and shook it at her and said, “Now don’t try to cross, dear.” She was
A switchman on the following engine testified that the two engines were about two hundred feet apart; saw the little girl run on the track to get past the engine. The first he saw of her she was running; did not see her before she started to run. On cross-examination he said he could not say how far away from the crossing the head of the engine was when the child started to cross; does not know “whether she was on the street or in the yard when he saw her run. She was running to get around the engine.” He at first said that when he saw the little girl start to run, she was one hundred or one hundred and twenty-five feet from the track; afterwards he put the distance at “about twenty-five feet.”
The locomotive fireman of No. 146, the following engine, riding on his engine, saw the little girl before she was struck, standing on the south side of the inbound main line about fifteen or twenty feet from the track on the west side near the sidewalk. The watchman beckoned to her and she smiled and then started to cross; does not remember whether she went straight across; did not see her struck; saw her come out on the north side of the engine; saw her lying on the east side of the street by the side of the north rail of the track. On cross-examination he testified that there was an obstruction which prevented the engineer of No. 141 from seeing the child; the fireman could see her. Witness “could distinguish the smile on the little child’s face 200 feet away; she paused a second and then went on.’’ Asked, ‘‘Or did she pause at all?” he answered, “Yes, sir; she hesitated.” Question. “She hesitated and then went on?” Answer. “Yes, sir.” Witness could not say whether she went straight across along the sidewalk or went the other way.
The locomotive engineer of engine 141 testified that the engine was backing down from the Chouteau avenue yards and he was on the north side of the engine, the bell was ringing constantly and he had whistled for the crossing; saw the watchman on the crossing waving his flag. The engine was going five or six miles an hour; did not see the little girl before the accident. When he first saw her she was on the
The fireman of the engine that struck the child testified that he was on the south side of the engine as it backed down; saw the little girl standing on the south side of the main line of the inbound track, about ten or fifteen feet from the track. Witness was looking toward- the east. The child was standing still when he first saw her. After he first saw her he shut off the injector and the water and then got a glimpse of the child going back of the tank. He had to look after the water of his engine. It was not very long from the time he first saw the child until he saw her again; when he first saw her she was not close enough to be struck by a passing train; was ten or fifteen feet from the track. The next time he saw her she was disappearing behind the tank. On cross-examination he testified that when he first saw the little girl she was standing south of the Frisco tracks; does not know whether she was south of the Wabash tracks or not but she was ten or fifteen feet south of the Frisco tracks; could not say how long she stood there; had not moved while he looked at her; had not seen the watchman flag him; did not pay any attention to any one else standing there and could not say in what part of the street the child was when he first caught a glimpse of her. She was on the west walk or west side of the street and when he caught a glimpse of her going behind the tender he could not say how far out in the street she was.
Another witness in the service of the Terminal Railway at the time of the trial testified that on the day of the accident he was in the wall paper business and was going north on Theresa avenue when the child was killed; was on the east side of Theresa avenue and
This is practically the evidence in the case. In stating that part of it which bears upon this ninth instruction, we have not confined ourselves to the abstract prepared by counsel but where we were in some doubt as to whether that abstract gave the context of certain parts of the testimony with sufficient accuracy to enable us to determine exactly what the testimony was, we have not hesitated to resort to the complete transcript which was brought up and is before us. We have not set out all the testimony relating to the sounding of the whistle and ringing of the bell. It may be said as to the latter that the affirmative testimony tends to show that the bell was sounded from the time the engine left Grand avenue, which is several blocks
While the answer in this case, after a general denial, pleads the contributory negligence of the. little girl, the case was not submitted to the jury on that issue in like manner as where the injured party is an adult. On the contrary, the instructions asked by and given at the instance of plaintiff, distinctly-take notice of the fact that the injured party was a mere child, her mother testifying that at the time of the accident she was eight years and seven months of age.
By the first instruction given at the instance of plaintiff, the court told the jury that if they found from the evidence that Mary McNulty “at the time of her death exercised ordinary care according to her age, discretion and experience and such as a child of her age, discretion and experience would exercise un.der the same or similar circumstances to watch out for cars or engines at such crossing and to avoid injury therefrom, then plaintiff is entitled to recover $5000,” the instruction, in the part preceding this, stating the other facts necessary to a recovery. This same direction is in the second instruction given at the request of plaintiff, its concluding sentence being that if the jury found from the evidence “that plain
The third instruction given at the instance of plaintiff placed the case before the jury in this language : ‘ ‘ The court instructs the jury that the burden of proving that the deceased, Mary McNulty, did not exercise ordinary care according to her age, discretion and experience, and such care as a child of her age, discretion and experience would exercise under the same or similar circumstances, is upon the defendant in this case.” u
The sixth instruction told the jury that if they found from the evidence that the child “exercised ordinary care according to her age, discretion and experience at the time of her injury to avoid danger, and such care as could be expected from a child of her age, discretion and experience under the same or similar circumstances, then she was not guilty of contributory negligence, and this action cannot be defeated on that issue.” No instructions given at the instance of defendant controverted these propositions. In fact instruction numbered 13, given at the instance of defendant, told the jury that if plaintiff’s deceased child “was of sufficient age and discretion to appreciate the danger from being struck by a moving engine and train, and the danger from crossings on which engines and trains were being constantly moved, then it became and was the duty of plaintiff’s said child to exercise ordinary care according to her age, discretion and experience in avoiding danger therefrom. And if you find that the death of said child was the direct result of a failure of said child to exercise such care, plaintiff cannot recover even though you should also find that defendant was also negligent in not ringing its bell or in otherwise giving warning.” No error is assigned to this instruction by counsel for appellant. It will therefore be seen that the learned trial court submitted
In Spillane v. Missouri Pac. Ry. Co., 135 Mo. 414, 37 S. W. 198, the plaintiff to whose use the action was brought was a boy nine years and about four months old. Judge Gantt, speaking for our Supreme Court in that case, said (1. c. 426): “When the facts disT close that an infant is old enough to know the danger of going upon railroad tracks; that he is intelligent and is conversant with the management' of trains thereon, we know of no principle of law which would absolve him from the duty of looking and listening for trains and from avoiding danger by getting off of the tracks. In this connection the analogies of the law respecting the doctrine of doli capax seem pertinent and may be invoked by way of illustration. . . . Doubtless a boy of this age living as plaintiff did for years in the immediate vicinity of this crossing knew the danger that he would incur in crossing the tracks better than thousands of adults who rarely have occasion to cross railroad tracks and yet are conclusively presumed negligent if they attempt to cross them without looking or listening.”
In Ridenour v. Kansas City Cable Ry. Co., 102 Mo. 270, 13 S. W. 889, 14 S. "W. 760, a case in which the plaintiff was a boy ten years old at the time of the injury Judge Barclay speaking for all of the court except Judge Sherwood, who dissented on
The authorities on the responsibility of a minor are so fully collated and the doctrine so thoroughly discussed by Judge Noetoni, speaking for this court, in Herdt v. Koenig, 137 Mo. App. 589, 119 S. W. 56, that it is unnecessary for us to go into them here. In the Herdt case the plaintiff was a boy ten and a half years of age. Our court held that a boy of his age, knowing the dangers incident to playing around the place where the accident occurred and knowing its unsafe condition, who had been repeatedly warned against playing around the premises, and who in disregard of these warnings was injured, was guilty of contributory negligence as a matter of law and could not recover for the injury so sustained. Whether the rule announced in the Holmes case or that announced in the Spillane case is to be followed here in considering the age of this child, is not necessary for determination, for, as we have before stated, the learned trial court very fully and by assent of counsel in the case announced the law for this case to be that in determining the act of the child the jury could take into consideration her age, and the trial court, as held proper in the Holmes case, submitted that question
The case then resolves itself, under the ninth instruction, as one turning upon the acts of the employees of the defendant.
The case nearest in line covering this phase of it that has been called to our attention is that of Illinois Cent. Ry. Co. v. Dupree, 138 Ry. 459, 128 S. W. 334, heretofore referred to by us on another proposition. In that case the facts save as to the age of the child are very much in line with the facts in the case at bar. In the Dupree case the child who was injured in consequence of being run over by a freight train of the railroad company was five years of age at the time of the accident. While attempting to cross the railroad tracks at a public crossing she was run over by a freight train and her feet so crushed that amputation became necessary. It is stated in the opinion (1. c. 463) that there was evidence tending to show that the train was running very fast and the court stated that it might be admitted that if the child had been standing on the track or had gone upon the track when the train was some distance away, the speed of the train might have played some part in the accident. The court, after calling attention to this, says: “According to all the proof, however, the child darted across the track immediately in front of the engine. Those in charge of the engine could not have anticipated that the child, who was in a place of safety,' would suddenly take a notion to run across the track immediately in front of the engine. They had a right to assume that she would remain in a place of safety until it became reasonably apparent that she intended to cross the track. When she did start across the track, everything was done that could have been done to avoid the injury. As she ran rapidly and immediately in front of the engine, it is immaterial whether
With very great earnestness the learned and experienced counsel for appellant insists that if a proper lookout had been kept those in charge of the locomotive engine which was backing down on this track could have seen the child start to cross the track; that they did see her or could have seen her as she started to cross; that the engine was moving at such a low rate of speed, from four to six miles an hour, that they could have stopped before the child covered the fifteen or twenty-five feet between where she is proved to have been standing and the place at which she was struck. A very ingenious mathematical demonstration of the relative speed of the locomotive and of the child and of the relative distance to be covered is attempted in support of this theory. The trouble with this theory and attempted demonstration is, that they are not sustained by the evidence in the case. It is true that there is a dispute as to whether the child was standing twenty-five feet from the track at the time she started across, or ten or fifteen feet. Even assuming that it was twenty-five feet, the evidence does not show that had those on the engine seen her start from that point, the engine going at the speed
It must be rememberd that this was not an affair of even a moment; it all happened in seconds. The only witness who appears to have actually seen the occurrence, testified that when the child started to cross she started on a run when the tender of the engine was within fifteen or twenty feet of her. The watchman did not see lier start across, for until the tender of the engine came between him and the child, she was standing still. When she started she ran diagonally across the street immediately in front of the oncoming danger. Before she crossed the track or had cleared the north rail her hat flew off and she stumbled and fell, falling between the rails or near the north rail, exactly where is not very clear, and" was struck and killed. There is no evidence whatever in the case on which to found a conclusion that any care on the part of those in charge of the engine could have prevented the catastrophe. We are not prepared to hold that when a train crew approaching a crossing sees a child standing alongside of the rails but beyond danger, they are to assume that she may attempt to pass ahead of them and must stop.
We hold, therefore, that the ninth instruction was properly given.
Neither the humanitarian nor the last clear chance rule are involved or were invoked here. If we were to apply either to the facts, we do not think that this defendant, even considering the age of the child, could be held to have violated them. [Baecker v. Mis
The result is that the verdict of the jury and the judgment of the circuit court thereon should he affirmed, and our former judgment of reversal and remander set aside. It is so ordered.