157 Mo. App. 53 | Mo. Ct. App. | 1911
— This is a suit for damages accrued through the negligence of defendant. Plaintiff, an infant suing by his next friend, recovered and defendant prosecutes the appeal.
Plaintiff received his injury while crossing defendant’s railroad track on a public street within the city of Mexico, as a result of defendant’s locomotive engine colliding with the surrey which he was driving. The view of the railroad track for a considerable distance east of the street crossing was obscured by a luxuriant growth of weeds, so that those traveling from the north on the highway were unable to discern the approach of trains, unless it was through the sense of hearing; and in this instance, the locomotive which collided with the surrey was single and alone, without a train attached, so that it emitted but. slight noises to suggest its approach. Though at the time of his injury plaintiff was but a nine year old boy, he was accustomed to hitching up and driving the family horse to the surrey, which
The specifications of negligence relied upon for a recovery ar.e two in number, and relate to both the violation of the speed ordinance of the city of Mexico and the omission to perform the statutory duty of ringing the bell or sounding an alarm upon approaching the crossing of a public street. The ordinance of the city of Mexico, declared upon in the petition and introduced in evidence, prohibits the running of railroad trains at the point in question at a rate of speed in excess of eight miles per hour and denounces the act of doing so as a misdemeanor. The testimony not only established defendant’s negligence in respect to operating the locomotive at the point in question at an unlawful rate of speed but abundantly supports the charge as well that no bell or other signal was being sounded on the engine. Even the evidence of defendant’s engineer and others for it concedes the locomotive was being operated at a speed of twelve miles an hour when the collision occurred
It is argued that, though plaintiff and his companions testified they stopped, looked and listened at a point about seventeen or eighteen feet north of the north rail of the Wabash track before driving forward, the court should nevertheless have directed a verdict for defendant, as it is obvious to have looked-and listened at the point mentioned was to have seen the approaching locomotive. No one can doubt that railroad tracks ■in and of themselves signify danger, of which all persons of discretion are to take notice, and therefore the requirement of the law that one shall look and listen before going thereon. It is true, too, the courts will decline to accept evidence as of probative worth that one did not see an approaching locomotive, though he looked and listened therefor, when it is perfectly obvious that, had' he looked, he could not have failed to observe it. But- after a careful scrutiny of all of the evidence in the record, we are unable to discover such a situation here,' for the evidence tends to- prove that plaintiff’s view was obscured sufficiently to prevent him from seeing the approach of the locomotive anywhere near the crossing.
But it is argued though such be a question for the jury, the court erred in referring the specification of negligence with respect to the unlawful speed of the locomotive to the jury, for it is said, though- the bell was not sounded or other alarm given and the engine was actually running four miles in excess of the ordinance limit, it conclusively appears the matter of speed was not
It is argued plaintiff’s first instruction is erroneous because it omits to require the jury to findthe excessive
It is argued plaintiff’s instructions should not have been given because they omitted to define contributory negligence. As to this matter,, it may be said all the instructions require the jury to find that plaintiff exercised ordinary care in the circumstances of the case and the matter of not defining contributory negligence more particularly is one of non-direction only, on which reversible error may bepredicated. Besides, defendant’sinstructions on that question sufficiently enlightened the jury.
The evidence is, that plaintiff was permanently injured and among other things his left leg was broken in two places, with the result thát it is one and one-half inches shorter than the other. Besides, he has a stiff ankle. With this proof in the case, it is argued the court erred in giving plaintiff’s instruction on the measure of damages authorizing consideration, as an element thereof, of his capacity for earning a livelihood after attaining his majority. Plaintiff was eleven years old at the time of' the trial and theré is no evidence that he had ever earned anything nor is it shown as to whether or not he is possessed of an estate or is without more than ordinary means and will be required to subsist by his own efforts after maturity. Because of this state of the proof, it is said the court should not have submitted to the jury the question as to whether or not his earning capacity was depreciated, as an element of recovery. The argument is unsound, for, whatever the situation of plaintiff may be, he is none the less subject to the vicissitudes of fortune and is entitled to the full measure of his.earning capacity unimpaired by defendant’s tort. Though no evidence be introduced on the subject whatever, it is the rule of decision that, in dealing with infants, the question of
The'jury awarded plaintiff a recovery of $7000, and it is urged the amount is excessive, but we are not so persuaded, for the injuries received are both severe and permanent. It appears plaintiff suffered, besides a complete complex fracture of the femur (thigh bone), a fracture of both bones in the left leg below the knee and an injury to his ankle and knees as well. He was rendered unconscious and was dangerously ill for a number of days. He received as well a number of bruises about the body and legs and a gash behind the ear. Then, too, the force of the collision was sufficient to occasion a hemorrhage from the ear and a severe shock to his nervous system. From these injuries and shock, he was rendered unconscious and so remained for some time and suffered numerous convulsions. It-is said he had four convulsions in one night. He was'confined to his bed for a period of eight weeks and was required to use two crutches in inoving around for about fourteen months thereafter.
After having examined all of the arguments advanced, we have been unable to discover reversible error in the record. The case seems to have been well and carefully tried. The instructions for plaintiff are eminently fair and those for defendant present the matter for it from every point of view. The court did not err in refusing the several instructions requested by defendant, for every pertinent principle of the law of the case was incorporated in those given. Fifteen instructions Were given at the instance of defendant and it is in no position to complain of -not having more. The judgment should be affirmed. It is so ordered.