Muehlhausen v. St. Louis Railroad, 91 Mo. 332

91 Mo. 332 | Mo. | 1886

Norton, C. J.

Plaintiffs’ suit is based upon the allegations that they were the parents of Edward Muehlhausen, a minor; that he was a passenger on one of defendant’s cars; that defendant, under an act of the legislature, was bound by law to furnish each of its cars “with adjustable gates, or guards, such as would effectually prevent passengers from getting on or off the front platform” of the car; that, while such passenger he was, by the agent of defendant in charge of the car, “negligently, carelessly, and recklessly, and in utter disregard of duty, permitted to stand upon the front platform of said car, and said defendant, through its agent in charge thereof, permitted said car to be run without a conductor thereon, and without closed gates, or guards on its front platform, as by law it was bound to have” ; that said car was so negligently, unskillfully, and in utter disregard of duty, run, conducted, and managed, as aforesaid, that, in consequence of said negligence, carelessness, and disregard of duty, of the' defendant and its servants, said Edward was thrown.' off, or permitted to jump off, said platform of said car, and was run over by the car and killed.

The defendant’s answer denies the allegations of the petition, and pleads, also, contributory negligence-in this, that Edward got on the car when he had no right to, went on the front platform, and there jumped off, or got off, when the car was in motion, and was injured by reason thereof; pleads, also, that if he was injured, as in petition stated, his injuries so sustained were occasioned by his getting off a car of the defendant at the front or forward end thereof, and on that account,, by virtue of the provisions of a statute of this state,, entitled, “An act concerning street railroads in the city of St. Louis,” approved January 16, 1860, defendant is-not liable therefor, or for any damages resulting therefrom. The reply is a general denial. Plaintiffs obtained judgment on the trial for five thousand dollars, which, on appeal to the court of appeals, was affirmed pro forma, on stipulation.

The evidence on behalf of plaintiffs tended to show that Eddie Muehlhausen, a boy about eight years of age, in company with other children, was returning from school, and that the driver of one of defendant’s cars stopped it to allow two or three girl children to enter the car, some of the witnesses testifying that he stopped at their call, and others that he beckoned to them, and stopped, or slackened, the speed of the car for them to get on. . It also tended to show that thegirls got on. at the east end of the front platform of the' car, and, also, that the Muehlhausen boy boarded the car about the same time, whether at the front or rear .end, does not clearly appeal-, but it does appear, that after getting on he stood on the front platform by the side of the driver, till after riding a short distance, about two blocks, he either fell from, or jumped off, the east side of the front platform, and was run over and killed, some of the witnesses testifying that he jumped off, the boy, himself, on being asked by the person who picked him up just after the accident, how.it happened, replied by saying, “ I fell off the front platform.” The evidence also tended to show, that on the east side of the front platform, at which the boy either fell, or jumped off, there was no gate at the time, and that when the children boarded the car there was no conductor in charge of it, nor was there any at the time the accident happened, but the car was in the sole care of the driver, the conductor having previously left the car. The evidence also tended to show that the driver was aware of the presence of deceased on the car, but that nothing was said by the driver to the boy, nor by the boy to the driver, and that no fare was demanded of him, nor did he pay any. The evidence on the part of defendant, as given by the driver, tended to show that previous to the accident he had removed the gate off the east side of the front platform to let a passenger off, at his request, but that, after he got off, he put the gate back securely in its place; that he did not see the boy get off, and did not know that he was going to do so ; that he did not invite the girls to get on the car, nor stop it for them to get on, but that while he was going slowly, they jumped on the car, and also a lot of boys jumped on,' the deceased being one of them; that all of them got on at the rear platfox-m; that the east front gate was securely fastened; a boy could not get out there unless he removed the gate.

Defendant seeks a reversal of the judgment for alleged error committed by the court in rejecting evidence, and in refusing and giving instructions. On the trial, defendant offered to prove by its conductors, who knew what, before the death.' of deceased, was the effect find result to the boys who' jumped on the cars down on that portion of the road, as these boys did ; what was the effect, result, and danger, to them to stop the cars and put them off ; what the boys would do; and further offered to prove, by the driver of the car, why he did not stop the car on this occasion and put the deceased and other boys off. This evidence the court rejected, and, we think, properly. Whatever boys might do when put off, or whatever reason the driver may have had for not putting the boy off could not relieve the company from a liability for an injury inflicted by the negligence of defendant while he was on by the permission and consent of those in charge of the car, and under circumstances entitling him to the same care which it was the duty of the company to bestow or observe in carrying passengers.

It is next objected that the court erred in giving and refusing instructions. While the first instruction for plaintiffs may be subject to some verbal criticism, we perceive no - substantial objection to it. It is not broader than the petition, nor does it embrace a case not therein made, nor authorize a recovery on facts not alleged.

The second instruction for plaintiffs is warranted by the rule stated in Sherman v. Railroad, 72 Mo. 65, where it is said: “The train being one on which passengers were allowed to be carried, even if the plaintiff boarded the train without the permission or knowledge of the conductor, yet, as the conductor, after he became aware of his presence on the train, suffered him to remain, he was entitled to the same protection as if he had paid his fare.”

The instruction given by the court of its own motion is claimed to be erroneous. There is no evidence in the record, except of conjectural character, that deceased was on defendant’s car without any intention of paying his fare, and the instruction, as given, was favorable to defendant in tliis respect, and the justification annexed to it by the words, “ unless the jury believe the driver uonsented to bis being and remaining on the car,” was justified by the authority above cited.

It is objected that the court erred in not using in the fourth instruction the words, such gate, instead of a gate, and that the instruction is erroneous and misleading, in that it authorizes a recovery without the jury being required to find that deceased was a passenger. The objection is unsubstantial, because the jury had been told, in the first instruction, that they must believe that deceased was a passenger before they could find for plaintiffs, and because the kind of gate defendant was required to keep was fully explained in the instruction, and in view of this we cannot conceive how the jury could have been misled by the use of the words, a gate, instead of such gate.

The objections to the fifth instruction are, that it is too general, does not define the word, “remotely,” or specify the degree of “ care and prudence ” required of defendant, and raises the question concerning saving the boy by prudence and care, after Ms danger was impending, which it is insisted was not in the case. The boy’s danger was impending when standing on the front end or platform, provided the gate was not in its place, as the evidence tended to show, and it was the duty of the driver to put it in its place, which, if done by him, in all human probability, the accident would not have occurred. The instruction is not more comprehensive than the petition, and is not to be condemned for the use of the words, “remotely,” and “prudence and care,” without further explanation. See Morrissey v. Wiggins Ferry Co., 43 Mo. 384, where a like instruction, as to the use of the above words, was approved.

The objection urged to the sixth instruction is, that it ignores the question as to whether deceased was a passenger, and leaves the jury to find, as a matter of fact, what is contributory negligence, without any explanation as to what constitutes contributory negligence. It will be perceived that in the first instruction the court predicates the right of plaintiffs to recover on the fact that deceased was a passenger, and in the instruction objected to, that the jury were not left at sea and without a guide as to what would constitute contributory negligence, but were directly referred to other instructions explaining what would be contributory negligence, and the facts necessary to constitute it are set out in the eleventh instruction given for the defendant. The failure to embrace all the issues in one instruction is not error, if they are all embraced in the series o.f instructions given, and they, as a whole, are correct, and not contradictory, nor calculated to mislead. McKeon v. Railroad, 43 Mo. 405; Whalen v. Railroad, 60 Mo. 328; Karle v. Railroad, 55 Mo. 476.

It is also insisted that the court erred in refusing-instructions one and two, asked by defendant, to the effect that, under the pleadings and evidence, plaintiff could not recover. These instructions were properly refused, if for no other reason than the fact in evidence that the boy stated “he fell off the front platform,” especially so, in view of the fact, which the evidence tended to show, that there was no gate in its place to prevent his falling off, and the fact that the car was going about five miles an hour, with a curve in the track.

The ninth of defendant’s instructions was properly-refused, because it ignored the duty imposed by law on the defendant to keep an adjustable gate on- the front-end to effectually prevent passengers from getting off there. In support of this instruction it is argued by-counsel that, inasmuch as it is provided by section 9> of an act of the General Assembly, approved January 16, 1860 (Acts p, 518) (defendant company being one of. the companies mentioned in said act) that: “said railroad companies shall not be liable for injuries to persons-occasioned by their getting on or off the cars at the front or forward end of the car; ” that if deceased got off the front end of the car and was thereby injured, the defendant is not liable, although deceased was so young-in years as not to comprehend the danger incident to-such an act, and, although the company may have had no gate in its place to prevent his getting off, as is provided by section 4, Acts 1869, page 207, which is as follows : “No passenger shall be permitted to get on or off any car, by the front platform, while the car is in motion, and each car shall be furnished with such adjustable gate, or guard, as shall effectually prevent it.” It is insisted by counsel that this last act is for the protection of passengers, and means nothing more than if not com plied with by defendant, and by reason thereof a passenger should be thrown, or fall off, the defendant per se would be liable. If the act means nothing more than this, the necessity for its passage is not apparent, because the act of 1860 only exempts the company from liability for injury to any person sustaining such injury by getting on or off the front end of a car, but does not deny the right of a passenger to recover, who, through the negligence of a defendant company, was either thrown or caused to fall off such front end, or platform. McKeon v. Railroad, 42 Mo. 79. The act of 1869-was passed to secure safety of life and limb, and should not be narrowly construed. In view of this, and the fact that children of an age too young to comprehend the danger of getting off the front end of a car, in motion, were liable to become passengers as well as adults, it is not going too far to say that it was doubtless within the-humane purposes of this act to provide against such danger for this class, by not only requiring the companies to furnish an adjustable gate for the forward end of the car, but such an one as would not only prevent, but effectually prevent, them from getting, off at such end. The instruction wholly ignored the duty imposed by the act of 1869, and for that reason was properly refused.

While, under the pleadings, instruction number seven might well have been given, its refusal is not sufficient to justify a reversal, inasmuch as what it declares is virtually declared in the first instruction, given for the plaintiffs, which predicates their right to recover on the fact that deceased was a passenger, and the refused instruction, if given, would only have been a reiteration, in a negative form, of what has already been stated in the first instruction.

The claim of counsel, that there was no evidence that plaintiffs were the parents of deceased, is not well taken. While the record showed that one of the plaintiffs testified that they were the parents of Johnny Muehlhausen, it also shows that defendant admitted that the child alluded to by the witness was the one run over and killed by the car, mentioned in the petition, and at the time mentioned. The point made is entirely without merit.

Judgment affirmed,

in which all concur.