136 Mo. 562 | Mo. | 1896
The plaintiff, who is a negro boy, sues by next friend for injuries received by him as the result of being run over by a train of defendant’s cars in the city of Higginsville, on the evening of the sixth ■of May, 1892, at about-8 o’clock.
At that date plaintiff was eleven years of age. The jury, after hearing the evidence, returned a verdict in favor of plaintiff for $8,000. At a previous trial he received a verdict for $6,000.
The city of Higginsville, in the county of Lafaj^ette, was a city of the fourth class, and had an ordinance in force limiting the speed of railroad trains to a rate not exceeding six miles per hour. The defendant’s railroad runs through the city from east to west in a southwesterly direction, crossing Russell street, the principal street of the town. Russell street runs through the principal part of the town, north and south; beginning on the north it runs up to the railroad, crossing
The railroad from Russell street crossing continues west on a straight line fifteen hundred feet, and about nine hundred feet west of this crossing, on the north side of defendant’s right of way, is a mill; and about three hundred feet west of Russell street crossing there
At about 8 o’clock on the evening of the sixth day of May, 1892, defendant’s passenger train called the “Hummer” approached this crossing from the west at a rate of speed varying according to several witnesses from twenty to thirty-five miles per hour. The whistle was sounded for this crossing at the usual place; the bell rung and kept ringing as it approached the crossing and over the crossing, and continued ringing through the town, and the headlight of the engine was burning. According to several witnesses it was not yet dark, but was dusk or twilight, but a person could be seen and recognized for a considerable distance.
After this train had passed, the plaintiff, a negro boy eleven years of age, was found lying fifteen or eighteen feet, east of the Russell street crossing, between the main track and the sidetrack of the defendant, with both of his legs cut off, which was supposed to have been done by the train. The engineer, Jones, and the fireman, Eikhurst, were each on their respec
W. S. Dornblaser, a witness on the part of the plaintiff, crossed the track at this crossing from the south to the north, and stopped about twelve feet north of the main track on the sidewalk and watched the train until it passed over Russell street crossing and saw it strike no one.
James Jackson, a witness on the part of the plaintiff, was standing east of the crossing, on the depot platform, about ten or twelve feet east of the sidewalk; heard the train whistle, and the ringing of the bell; saw it approach the crossing, cross over it, and saw no one on the crossing, nor saw the train strike anyone.
Floyd Smiley, a witness on the. part of the plaintiff, was standing on the depot platform in front of the depot, saw the train approaching from the west, saw a boy, or some boys crossing over the track when the train was about two hundred or three hundred feet west of the crossing; continued to look at the engine and the train until it had gotten over the crossing' and saw it strike up one.
Mrs. Carrie Ellis, a witness on the part of the defendant, walkedfrom the north side on the sidewalk, on the east side of Russell street up near to the crossing ; stopped within a few feet of the point where the sidewalk crossed over the main track and waited until the train passed; noticed two black boys pass her, but did not notice them after passing her. She watched the engine until it had passed entirely over the crossing, and saw it strike no one.
James Dornblaser was' standing in front of the Arcade Hotel, saw the engine and train pass over the crossing; but saw no one on the crossing nor saw it strike any one; but just before the engine entered upon the crossing he saw a colored boy, who looked to be twelve or thirteen years old, approaching the crossing from the south side of the track, but the engine and the train passed between him and the boy and he saw him no more. When he first saw the boy the train had not yet come into view.
William Chinn, a witness on the part of the defendant, was seated in front of the Arcade Hotel, and noticed the train pass over the crossing; he looked under-the cars and sdw'a boy on the south side of the train “making motions ancl seemed like he was catching to the train or something.”
John Bowman, a witness on the part of the defendant, approached the crossing from the south side of the sidewalk and seeing the train approaching from the west stopped and' waited for it to pass over the crossing. While standing there he saw this boy, the plaintiff, make a grab for the banister of the steps of about the third car, and saw him jerked under the train. The boy at the time of grabbing for the train was on the east of Bowman on the sidewalk.
.Of all of a great number of witnesses, both for the plaintiff and defendant, who saw the train pass over the crossing on that evening, no one saw the plaintiff struck on the crossing, and all of the witnesses say that no one was struck upon the crossing.
Dr. Webb, who treated the boy, asked him several times how he got hurt, and he always answered the same way and told him UI don’t Imoio.”
The testimony of Claude Payne, the plaintiff, covers some ten pages; it is made up largely of questions and answers, and frequent repetitions of the same. The substance of it may be stated in a small compass; it is to this effect: Plaintiff (whose mother lived four blocks south of the crossing in question) on the evening heretofore stated, being sent by his mother to the postoffice, went north along Russell street until he came to the Russell street crossing; when he reached that point, he looked out for a train; looked up and down the tracks, and the reason he did this was because he was afraid of the train, that it would hurt him unless he watched out for it. Seeing no train, he crossed the tracks, continued north to the postoffice, did his errand, and started back home returning on the same street. When he reached the railroad crossing he again looked up and down the track because he thought
Fannie Payne, the mother of the boy, testified that the boy was eleven years of age; that he was familiar with the crossing and the railroad track; that he lived on the south side of the railroad, and the schoolhouse which he attended was on the north side of the railroad; that he had attended school as often as three sessions, two or three months at a session, and had daily crossed over the track to and from the schoolhouse; that he had ridden upon the cars; that a part of the time the boy had lived in the country with his grandfather; and while in the country at his grandfather’s he helped his grandfather cut brush, burn brush, drop corn, cover corn, cut weeds, feed horses and curry them, and that while there he made a hand at work. She further testified that he was a healthy boy, had a good mind, good hearing and good eyesight, was active in his movements.
The engine had whistled for the crossing; the headlight was brightly burning; the bell was ringing and the train was on time; the engineer and fireman were at their respective posts; the train was making the usual noise, and plaintiff was expecting that very train; but he alone of all others, when he went to cross the track, though a bright, active boy, with a good mind, eyesight, and acquainted with the locality and with the dangers incident to crossing the track, though he listened he could not hear the whistle blown, nor the bell constantly ringing, nor the rumble of the train, nor see with his good young eyes the blazing headlight of the train as it rapidly advanced upon him. Such testimony as this is so contrary to the daily experience of common life, so at war with the conceded and indisputable physical facts in this case, that neither courts nor juries can without stultifying themselves, yield to it an iota of probative force ■or effect. It is a proposition too monstrously improbable for rational humau belief. To argue to the contrary of this is to endeavor the transmutation of the impossible into possibility. However, in this fin de siecle, this questioning age, when axiomatic truths are doubted daily, and propositions wholly improbable are put forward with the most audacious assurance, it may not be amiss to cite and quote from courts and text-
“When one approaches a point upon the highway where a railway track is crossed upon the same level, it is his plain duty to proceed with caution; and if he attempts to cross the track, either on foot or in a vehicle of any description, he must exercise, in so doing, what the law regards ordinary care under the circumstances. He must assume that there is danger, and act with ordinary prudence and circumspection upon that assumption. The requirements of the law, moreover, proceed beyond the featureless generality that one must do his duty in this respect, or must exercise ordinary care under the circumstances. The law defines precisely what the term 'ordinary care under the ckcumstances’ shall mean in these eases. In the progress of the law in this behalf, the question of care at railway crossings as affecting the traveler, is no longer, as a rule, a question for the jury. The quantum of care is exactly prescribed as matter of law.
“In attempting to cross, the traveler must listen for signals, notice signs put up as warnings, and look attentively up and down the track. A multitude of decisions of all the courts enforce this reasonable rule. It is also consonant with right reason and the dictates of ordinary prudence, and so much in line with the ordinary care which the average of mankind display in the daily routine of life, that it should seem to be scarcely dependent upon the authority of decided cases in t'he law courts.” Beach on Contrib. Neg. [2 Ed.], secs. 180, 181.
“In many cases in this court, parties injured, or their representatives, have been denied a recovery because of failing to observe the precautions mentioned in the sections just quoted. Harlan v. Railroad, 64
“In Michigan, an instruction in this form has met with frequent approval: ‘The track itself is a warning of danger to those who go upon it, and persons about to cross a railroad track are bound to recognize the danger, and to make use of the sense of hearing as well as of sight, and, if either can not be rendered available, the obligation to use the other is the stronger to ascertain, before attempting to cross it, whether a train is in dangerous proximity; and if they neglect to do this, but venture blindly or carelessly upon the track, without any effort to ascertain whether a train is approaching, it must be at their own risk. Such conduct is of itself negligence.’ Mynning v. Railroad, 59 Mich. 257, and cases cited.”
“In Allen v. Railroad, 19 Atl. Rep. 105, the supreme court of Maine says: ‘The evidence shows that, at twenty-five or thirty feet distant from the crossing, the approaching train from Bath might have been seen by the plaintiff several hundred feet distant from the crossing. The plaintiff did not look in that direction until his horse’s fore feet were between the rails. Was the neglect on his part to look in that direction a want of ordinary care and prudence ? Is a traveler justified in driving upon a railroad crossing, in the absence of safety signals giving him the right to cross, without looking for an approaching train 1 It has been many times decided in this state that the traveler, before crossing a railroad, must both look and-listen. * * * If the crossing at which the plaintiff was injured is so constructed that an approaching
“In a crossing accident case in Indiana, it is said by the supreme court of that state: ‘The third instruction would have informed the jury, had it been given, that a railroad track is of itself a warning to those who go upon it, and that persons about to cross it are bound to recognize the danger, and to make use of the sense of hearing as well as that of sight, and. if either can not be made available, the obligation to use the other is the stronger; to ascertain before attempting to make the crossing whether or not a train is in dangerous proximity; and if one neglects to do this, but carelessly ventures upon the track, and is injured, it must be at his own risk; that such conduct is sufficient of itself to defeat a recovery. This instruction stated the law correctly. All persons who are acquainted with the manner in which railroad companies operate their trains over their lines of railroad know that there is always more or less danger in going along or across a railroad track; that there is always danger from a passing train; that safety requires that both the sense of sight and hearing must be exercised vigilantly to ascertain if a train is approaching; and hence a failure so to do would constitute negligence. This, we think, is self-evident. And if the circumstances are such that but one of the senses can be exercised, it is evident to any one that the sense which can be exercised should be employed with still greater vigilance. * * * If a crossing is particularly dangerous, and requires extraordinary effort to ascertain whether it is safe to attempt to pass over it, one familiar with the locality and danger surrounding it must use care pro
Counsellor plaintiffs, however, assert that:
“When the boy reached the railroad on his return home it was about dark, and he did all in Ms power to ascertain whether there were any trains approaching from either the east or west, and not seeing any and not hearing any, he started across, and while crossing he was struck by one of defendant’s trains running through said city and over said crossing at the unlawful, reckless, negligent, and dangerous rate of speed of from thirty-five to forty miles per hour.'”
But in this instance it is plainly proved beyond peradventure that this statement of plaintiff “that he did all in his power to ascertain whether there were any trains approaching,” etc., tvasnot, and indeed cotild not be, true.
This matter of denying probative force, even to direct and affirmative testimony, when such testimony
“But it is urged by the appellee’s counsel that the plaintiff testifies that he did both look and listen to see and hear the train, but did not; and that this testimony shows that, he was not guilty of contributory negligence, or, at the very least, it made that a question of fact for the jury. The difficulty, however, with the position is that the conceded or undisputed facts being true, this testimony can not, in the very nature of things, be also true. It constitutes, therefore, no conflict. Suppose the fact is conceded that the sun was shining bright and clear at a specified time, and a witness, having good eyes, should testify that at the time he looked and did not see it shine. Could this testimony be true? The witness may have been told that it was necessary to prove in the case that he did look and did not see the sun shine; he may have thought of it with a desire that it should have been so; he may have made himself first believe it was so, and this belief may have ripened into a conviction of its verity, and, possibly, he even may testify to it in the self-consciousness of integrity. But, after all, in the very nature of things, it can not be true, and hence can not, in the law, form any basis for a conflict upon which to rest a verdict. A man may possibly think he sees an object, which has no existence in fact, but which it may be difficult, if not impossible, to prove did not exist or was not seen. But an object and power of sight being conceded, the one may not negative the other. In this case the plaintiff had good eyes; the train was approaching him in the night, with the engine’s headlight burning brightly; if the plaintiff looked he must have seen it, or he must have looked very negligently and care*581 lessly — in either ease he was necessarily, in the eyes of the law, guilty of contributory negligence, precluding his right to recover.”
So, also, in Marland v. Railroad, 16 Atl. Rep. 623, speaking of the present matter under investigation, the supreme court of Pennsylvania said: “On the trial of this case the plaintiff testified that he stepped upon the track, and was instantly struck and injured. It is true he said he looked up and down the track, and saw nothing, but it is necessarily true also that, if he made use of his eyesight, he must have seen the approaching train. He could not possibly look along the track in the direction of the approaching train and fail to see it, since his presence on the track and the collision were simultaneous. We have pronounced emphatically upon such facts in several of our recent cases. In Carroll v. Railroad Co., 12 Wkly. Notes Cas. 348, we said: ‘The injury received by the plaintiff was attributable solely to his own gross carelessness. It is in vain to say that he looked and listened, if, in despite of what his eyes and ears must have told him, he walked directly in front of a moving locomotive.’ ”
In the more recent case of Myers v. Railroad, 24 Atl. Rep. 747, Williams, J., said: “The rule is now well settled in this state that one approaching a railroad crossing upon a public highway must stop, look, and listen, at a convenient distance from the railroad track, before venturing to go upon it. This rule is imperative. If one disregards it, and suffers injury in the attempt to cross, the presumption of negligence on his part is a presumption juris et de jure. Having contributed to his own injury, he is remediless. If the traveler complies with the rule, and can see or hear a moving train approaching the crossing, what must he do? It follows logically from the rule now so firmly established that he must wait for the approaching train
“If a traveler, by looking, could have seen an approaching train in time to escape, it will be presumed, in case he is injured by collision, either that he did not look, or, if he did look, that he did not heed what he saw. Such conduct is held negligence per se.” Beach on Contributory Negligence [2 Ed.], sec. 182. To the same effect see Wharton on Negligence [2 Ed.], sec. 382.
Even in criminal cases, cases involving liberty or life, we have repeatedly ruled that, if a party testifies directly in the face of, and in opposition to, obvious
Myers’s case was approvingly cited and quoted from-by Maoparxane, J., in Kelsay’s case, 129 Mo. 362, where the controlling circumstances were virtually the same in legal effect as in the case before us. Of the same substantial import is Hayden’s ease, 124 Mo. 566, per Brace, C. J. See, also, Lane’s case, 132 Mo. 4.
Now look at the pivotal facts preserved in this record; Smiley, one of plaintiff’s witnesses, when speaking of plaintiff’s whereabouts, says: “When I first saw him, he was something like four or five feet from the rail, and he was going right south, and the train was up there two hundred or three hundred feet above on the track.” This witness is not contradicted, but is supported by every other witness who was in a position to see it. that the train was in full view as it advanced down the track. Indeed, it is one of the conceded facts in the case that the train was obvious to everyone who, along or near the track, cared to see it, and within hearing of every one along or near the track who cared to hear it. This is the positive and uncontradieted testimony of every witness who testified as to seeing or hearing the train. Opposed to this positive testimony is the merely negative testimony of plaintiff that he did not see or hear the train coming. But applying the rule heretofore announced by the authorities, supported as it is by the dictates of the most cogent reason, it is wholly immaterial what the plaintiff swears as to his inability to see or hear the train, or what verdict the. jury returned, because when
This contention leads us to recur again to the evidence. The testimony of plaintiff and of his mother abundantly establish that his judgment and discretion, his ability to take care of himself, were adequate to that task; indeed were equal to the judgment and discretion of the average man of mature years. This being the case, it is difficult to see why the same rule as to contributory negligence should not apply to a boy equal in capacity and intelligence to the average man as to the danger to be apprehended and guarded against in crossing a railroad track, as'should apply to such man. .The reason of the law of contributory negligence being founded upon knowledge of the danger to be apprehended and capacity and discretion to avoid it, whenever you prove the existence in equal degree of those elements and .ingredients in an infant which go to make up the responsibility of an adult, you thereby necessarily determine the responsibility of the infant and his amenability to the same law. In a word, as absence of capacity and intelligence exonerates or exempts an infant from the operation of that law, so the proven presence and established existence of such qualities and attributes in an infant, clothes and easts upon him the same
This view of the law has recently been announced by this court in Spillane v. Railroad, in an opinion delivered per Gantt, P. J., 135 Mo. 414, where the plaintiff, an unusually bright boy, a little over nine years of age, was injured by a train near a crossing.
Numerous decisions support the conclusion there reached, at least so far as to hold an infant amenable to the law of contributory negligence, and incapable of recovery where that law being disregarded and disobeyed the usual incident, resultant injury occurs. Some of the cases to be presently instanced, go even to the extent of placing an infant of demonstrated capacity and intelligence on the same plane of responsibility as if an adult.
In Messenger v. Dennie, 137 Mass. 197, a boy eight years and nine months old, who, while engaged in the sport of riding upon the runners of sleighs in the public streets, suddenly leaves a sleigh on which he is riding, while it is in motion, in a frequented thoroughfare, without looking behind him, and within thirty feet of a horse and sleigh following it, by which he is struck and injured, is guilty of such negligence as to preclude him from maintaining an action for the injury; and it was ruled in that case that on the facts proved, the plaintiff should have been denied a recovery as a matter of law.
So, too, in Twist v. Railroad, 39 Minn. 164, an intelligent boy, ten and one half years old,. and quite conversant with the danger he-was incurring, being injured, was held guilty of such contributory negligence as a matter of law. It is true in that case the injured boy was a trespasser, but it is not seen that this fact at all weakens the effect of his contributory negligence, since it is not a question of right to be in a
A bright boy of twelve years of age met his death at a railroad crossing in the city of New York, in the following circumstances: It appeared from the evidence on behalf of plaintiff that the- deceased, having crossed the track, turned back to recross it, when the train was in plain view, distant about four hundred feet, and he must have seen it had he looked; that either he caught his foot in or near the rails or he stumbled, and fell, was struck by the engine and killed. Held, that such attempt to recross was negligence on his part, whether he could or could not have crossed in safety had he not been delayed by catching his foot or stumbling; and that amotion to dismiss the complaint on the ground of his contributory negligence should have been granted. McPhillips v. Railroad, 12 Daly, 365.
In Wendell v. Railroad, 91 N. Y. 420, another crossing accident is reported, and in discussing the ease, Rugkee, C. J., said: ‘‘At the time of the accident he was a bright, active boy about seven years of age, considered competent by his parents to go to school and upon errands alone. He was sometimes intrusted with the duty of driving a horse and wagon, and was in the habit of crossing the railroad track at the place where the accident occurred. Previous to the accident he had been stopped while attempting to cross by the flagmen stationed at that point, and had been before cautioned by them against attempting to cross in front of an approaching train. The accident happened in broad daylight, and from the place where it occurred a train could be seen for upwards of five hundred (500) feet south of the crossing. The street on which' the boy
“In the light of these principles let us examine the circumstances of this case. Shortly before the accident the deceased with a companion two years older was standing near the flagman’s shanty on the south side of Main street and fifty-one feet east from where he was struck. The flagmen had left the shanty and approached the track in the performance of their duty. The approaching train was in plain sight from the place where the boys stood for a distance of about five hundred feet from the crossing. They both suddenly started on a run on the south sidewalk of the street, the older boy some fifteen feet in advance, to cross in front of the approaching train. The flagmen who faced the boys shouted to them to stop, and waived
“Under the circumstances we think he was negligent, either in going upon the track without looking to see whether a train was coming or not, or if he did look and see it, in doing so while it was in such dangerous proximity. The exercise of active vigilance under such circumstances was a duty which the law imposes upon every person who attempts to ’ cross a railroad track. ■ He should not be permitted to make close calculations to determine whether he can safely pass in front of an approaching body, and when the experiment has failed, charge the consequences of his mistake upon the owner of the colliding vehicle, or property (Belton v. Baxter, 54 N. Y. 246; 13 Am. Rep. 578).”
And upon these facts the judgment was reversed, because of failure of, the trial court to nonsuit the plaintiff.
In Michigan, a boy of twelve years, unusually bright for his age, was killed in a collision by climbing upon and riding on, the front of an engine, out of sight of the employes, and as the evidence of his negligence was clear and undisputed, it was held that the boy was not a trespasser, but that the lower court was correct in
“A boy of twelve years knows as well as an adult that upon the top of freight cars, or in front of the engine, when reversed, between that and the cars, is not a safe place when the train is moving. The fact that a boy of that age is more reckless and not as cautious as a man in the face of such danger is not of itself enough to excuse him. I can see no reason for submitting a question as plain and clear as this one to a jury. There could be but one result if the judgment and oaths of the jurors were not warped and disregarded because of the natural sympathy that goes out instinctively toward the sufferer in such a case as this, The plaintiff’s intestate was guilty of contributory negligence in riding as he did upon the train, and no fault of the company or its employes, short of gross or wanton carelessness, can excuse him from the results of such negligence.” Ecliff v. Railroad, 64 Mich. 196, loc. cit. 203.
So in Iowa, a boy between eleven and twelve years of age was struck by a passing train and killed while he, with other boys, was playing or lounging on the track. The train by which he was struck was running at about twenty-five miles per hour, while an ordinance of Des Moines forbade trains from running within the city limits at a speed greater than six miles an hour. Adams, C. J., after remarking that deceased was a trespasser, proceeds to say: “He was guilty of contributory negligence, unless he was a person of such tender years that he should be presumed to have such lack of discretion as to relieve his act of the character of negligence. The plaintiff contends that he was of such tender years; that he should have been so presumed, or at least that the jury would have been justified in so finding. But we think otherwise. A boy
In North Carolina an infant of eight years of age, in disobedience of the commands of his mother, and the warnings of defendant’s agents and servants, and, unobserved by the engineer, jumped upon a “shifting” engine about to move, took a position where he could not be seen by those in charge of and operating the engine, and remained there until, becoming alarmed at the speed, he attempted to jump off and received severe injuries; it was held, that he was not entitled to recover though no whistle was blown or other signal given, and‘this on the ground of contributory negligence. Murray v. Railroad, 93 N. C. 92.
In Wisconsin, an infant thirteen years of age fell through a hole in a bridge and was drowned. His mother, it seems, sent him across the bridge on an errand. It appeared from the plaintiff’s evidence that the deceased was thirteen years old; that he was familiar with the bridge, and knew of the hole in it; and
T was a boy twelve years old, intelligent, accustomed to attend school and assist the family by his labor; he lived near defendant’s road; he was killed by one of defendant’s locomotives when attempting to cross its tracks; the day was windy, and it was snowing, but not enough to obstruct the view; the street upon which he was traveling was crossed by four of defendant’s tracks; the first was a switch track upon which cars were standing on each side of the street, a passage-way having been left open for teams and individuals to pass along the street. T stopped in the center of the switch track facing the direction of the locomotive which was backing down at a high rate of speed; if he had looked he could have seen one hundred and eighty-six feet down the track; from the point where he stood to the center of the track where he was struck and killed, the distance was fourteen feet. T, after changing a bag he was carrying from one shoulder to another, started on; after taking one step he had an unobstructed view down the track on which the locomotive was coming, for two streets; he did not look in that direction after he started. Held, that T was sui juris and was guilty of contributory negligence; and that the submission of the question to the jury was error, and held also, that in the absence of evidence tending to show that a boy twelve years of age was not qualified to understand the danger and
In the light of these authorities and the reasons they suggest, it should be ruled that plaintiff was sui juris, and being guilty beyond doubt of contributory negligence is not entitled to recover in this action. And in concluding this paragraph, it is well enough to remark that when this cause was here on a former occasion (129 Mo. 405) the facts now in evidence as to plaintiff’s intelligence and capacity were not nearly so fully developed.
The answer is given in the testimony of several witnesses: Chinn who, sitting on the porch the Arcade
Now plaintiff does not attempt to deny the truth of the statements of these witnesses, and therefore their statements are to be taken as true, as much so as if plaintiff had made the admission in terms, as has been frequently ruled by this court in criminal cases. State v. Musick, 101 Mo. loc. cit. 271; State v. Patrick, 107
And obviously, if this rule obtains in criminal eases against a defendant witness, a fortiori should it obtain against a plaintiff witness in a civil ease. For this reason we hold that it stands admitted on this record that plaintiff was not struck on the crossing by the train, but was hurt after he had crossed, by heedlessly attempting to catch hold of the train as it passed by, and was thus jerked under it and injured. In such circumstances it only remains to say that, viewed in any light, the judgment should be reversed and judgment entered in this court for defendant.