Quirk v. St. Louis United Elevator Co.

126 Mo. 279 | Mo. | 1895

Sheuwood, J.

— Action for damages brought by plaintiff against the defendant company for injuries received by plaintiff by being struck by one of defendant’s cars as it issued from the elevator and moved down the track. There was evidence that'plaintiff and his companions were warmed of their danger as they approached the railroad track by the hallooing of the crossing watchman of the Wabash Railroad Company; but they paid no attention to it, rushed in front of the moving car, and were all more or less injured in the collision which instantly occurred, one of the number being killed outright. As to the warning of danger, there was evidence of a contrary effect to that before mentioned.

There was no evidence that there was a brakeman on the car that struck plaintiff; it would seem there was none. The evidence for plaintiff showed that James Quirk, Jr., who was at that time twelve years of age, went, on the afternoon of June 21, 1890, with a party of other boys of about the saíne age, from the neighborhood of his home in the city of St. Louis to the river at the foot of Carr street, where some of the boys went in swimming; that on their way to the river they went down Biddle street, passing the defendant’s elevator, which is located at the foot of Biddle street, near the levee; that a railroad track or switch extends from the Wabash track through the elevator and across Biddle street and joins the main Wabash track again; that over this switch cars are taken into the elevator to be loaded or unloaded and then returned to the main track; that as the boys passed on their way to the river, they saw one of the cars standing half in the elevator and half out into Biddle street; that Biddle street, at this point where this switch crosses it, is a public street of the city of St. Louis, used by both vehicles and foot passengers; that this party of little boys, after going in swimming and playing about the ferry wharf boat at the foot of Carr street and the mouth of Biddle street sewer for some hours, started to go home, up Biddle street, and again passed the elevator; that as they approached they saw a car again standing half in and half out of the elevator; that the boys were walking in couples, side by side, the plaintiff and another boy being behind; that as the plaintiff stepped upon the track, the stationary car moved suddenly, “jumped” and struck him; that he was knocked down and the wheels of one truck passed over his right leg, seriously and permanently injuring him; that another boy, Rudolph Ketcher, was knocked down and killed; that James Donovan and Willie Craemer were also struck, but not seriously injured.

There was conflict of evidence as to whether the ear was moving or standing still at the time plaintiff stepped upon the track.

It further appeared from defendant’s evidence that the cars by which the injury was inflicted are not operated by an engine, but are moved,' when it is so desired, from the inside of the elevator by a rope and a steam capstan; that the winding drum was only twelve inches in diameter and made thirty revolutions a minute or about a mile an hour; that the rope was fastened to the last one of a string of cars and by that means they were pushed out of the elevator; that outside the building the track descended by a slight ;down grade to the Wabash track; that the string of cars in being pushed out were not coupled together; that as they left the building and reached the incline they continued to run by force of gravity. How fast they ran after leaving the building, is a matter in dispute.

The instructions for the plaintiff and those for the defendant were very fair, and presented the respective theories of the adverse parties very well, with an exception to be presently noticed. As the other instructions will accompany this opinion it is unnecessary to insert them here at large.

It is claimed, on behalf of plaintiff, that instruction “B,” given at defendant’s instance, was unsound in its law. This is the only instruction in the series of which complaint is made by the plaintiff. It is as follows:

“Negligence, as used in the instructions given you in this case, means the doing of something which an ordinarily prudent person would not have done under the same or similar circumstances; or the omission to do something which a person of ordinary prudence would have done under the same or similar circumstances. The mere proof of injury through instrumentalities belonging to or used by the defendant does not establish a liability upon the part of the defendant for the injuries so suffered; audit is not proper for you, |in reaching a determination as to whether the defendant was negligent, to inquire whether the accident might have been-avoided if the defendant had anticipated its occurrence; but whether, taking the circumstances as they then existed, it was negligent in failing to anticipate and provide against the occurrence, as the testimony shows it did happen. So far as the charge of contributory negligence on the part of the plaintiff is concerned, you are instructed, if you find such to be the fact, that rails laid upon the street were themselves a warning that they were to be used for the purpose of moving cars thereon; and in approaching such rails, even though they were in the public street, it was the duty of the plaintiff to anticipate that they might be so used, and to be reasonably upon his guard, if they should be so used, to avoid injury therefrom; and if there was no proper guard or instrument or means for giving notice for such intended use, this fact, if the plaintiff' might have noted it by ordinary care, was reason for the exercise of greater vigilance upon his part; and if you believe from the evidence that the plaintiff might, by the exercise of ordinary care, have discovered that the cars were approaching him, and might, by ordinary activity and vigilance, have escaped from coming in contact with them, then you are instructed that the plaintiff can not recover, however gross may have been the negligence on the part of the defendant in failing to give notice of the movement of such cars. The law did not require of the defendánt the use of every possible precaution to avoid injury to individuals in the movement of its ears upon the track, nor of any particular means which it may appear, after the accident happened, would have avoided it.

“The requirement of the defendant is only to use such reasonable precaution to prevent accident to others, who at the time were themselves using ordinary care, as would have been adopted by prudent persons-prior to the accident.

“Its duty, as well as the 'duty of the plaintiff, is to be measured by the condition of things at the place where the accident took place as they were known to exist by each of the parties at the time the acts of each are complained of as being negligent, and these acts can not be characterized one way or the other by the subsequent determination of conditions unknown at the time to both, or to either, except so far as that knowledge may properly affect the act of the one so informed.

“If they acted with reasonable prudence and good judgment, they are not to be made responsible because the event, from causes which could not be foreseen, nor reasonably anticipated, has disappointed their expectations.

“Again, if you find in the light of these definitions that neither the plaintiff nor the defendant was guilty of negligence, but that the injury was the result of an accident, then your verdict should be for the defendant.”

This instruction covers over tivo pages of printed matter, and the whole series of instructions cover over seven pages in print.

Proceeding now to discuss the instruction to which plaintiff objects: In the first place, it is objected that there is no definition of the expression “ or dinary care.'” This is true, but this fault is common to all the instructions in the case, and therefore plaintiff is in no position to complain of the lack of such a definition. Besides, this being a civil case, if plaintiff desired a definition of the term, he should have asked an instruction to that effect, — as we have often so decided.

More serious objections, however, are to be found respecting the instruction in question. The expression “ordinary care” is generally defined to be such care as men of ordinary prudence would exercise under like circumstances. The term, like many other things in the law, is incapable of exact definition; like the chameleon it takes its color from contiguous objects. It is a relative term, and in order to be ordinary care it must accommodate itself to the exigencies of tbe particular case in which it is exercised. In some instances, what would be ordinary care in one class of cases, would be gross negligence in another. This principle is well illustrated in regard to the care to be taken of different articles of personal property. Thus, “A man would not be expected to take the same care of a bag of oats as of a bag of gold; of a bale of cotton, as of a box of diamonds.” Story on Bailm. [9 Ed.], sees. 15, 186.

A similar variation in the degree of care to be exercised of one’s person must prevail, in order that such care may rise to the standard and equal the measure of ordinary care. Anything more than .this' was not required either of plaintiff or of defendant. Anything less than this on the part of either would be negligence, and, if the proximate cause of the injury, then actionable negligence as to the party injured thereby.

The trouble with the instruction in question is that it apparently requires more than ordinary care'; something superadded thereto. This is obvious from the use of the words which have been italicised in various parts of the instruction. If they mean extraordinary care then they make the instruction erroneous; if they do not, then they make it misleading, so that either view of it condemns the instruction. Again, while plaintiff is required to anticipate the use to which the rails might be put, to wit, that of “running cars thereon,” defendant is not required to anticipate that the “public street” would also be put to its ordinary use, that of foot passengers crossing the same, perhaps every moment of the day. Why this inequality in stating the attitude of the respective parties? Furthermore, plaintiff is to use uactivity and vigilancehe is to “ exercise greater vigilance” in order to escape coming in contact with the cars, while defendant may have been “guilty of gross negligence in failing to give notice of the movements of such cars ,” and still escape all liability.

We can not subscribe to such a doctrine as the instruction contains, or, what amounts to the same thing, what it seems to contain, and what in all probability the jury were led to believe it did contain. It will not do to urge that whatever was vicious or vaguely worded was cured by the other numerous instructions, for this rule can only be applied in very plain cases, ones entirely free from doubt. This doctrine of applying good instructions'to antidote the bad,, has gone far enough, and should not further be extended.

For the error mentioned, we reverse the judgment and remand the cause.

All concur.