81 Mo. 434 | Mo. | 1884
suit was instituted in the circuit court of Clinton county by plaintiff to recover $5,000 damages for the death of her minor son, alleged to have been killed by the negligence of defendant, in the management of one of its trains. The cause was transferred, by change of venue, to the Livingston county circuit court, where, upon a trial, plaintiff obtained judgment, from which defendant has appealed to this court. Omitting the portions of the petition not deemed to be material in the investigation of the questions involved in this appeal, it sets forth as the specific grounds for recovery the foil owing:
That a short time thereafter, and at the time said Horace Scoville was killed, as aforesaid,, he, said Horace
The answer, besides containing a specific denial of the allegations of the petition, averred that said Horace Scoville, at the time of his death, was unlawfully upon defendant’s railroad track at a point where the same does not pass along or on a public road or street, and was unlawfully attempting to got upon defendant’s car while the same was in motion, and that his death was caused by his own recklessness, negligence aud unskillfulness, and not through, or by any default, negligence or unskillfulness of any of defendant’s officers, agents, servants or employes.
After plaintiff’s evidence was all put in, defendant asked the court to instruct the jury that under the evidence plaintiff could not recover. This instruction was refused and this action of the court is assigned for error.
The evidence tended to show that said Scoville, who was about eighteen years of age, was run over and killed
It was, also, in evidence that a person in the night, in front of an engine, cannot tell from the headlight whether it is going backward or forward, or standing still. Under this state of the evidence, the question, as to whether Scoville was guilty of such contributory negligence as would prevent a recovery, was for the jury under proper instructions, and the demurrer to the evidence was properly overruled, it having been held in the following cases that when the facts in proof admit of different constructions or inferences, that the question of contributory negligence is for the jury. Norton v. Ittner, 56 Mo. 351; Smith v. Union R'y Co., 61 Mo. 588.
The defendant also assigns for error the action of the court in giving the following instructions:
Even if the jury should believe,from the evidence, that Horace Scoville, was when killed, unlawfully or wrongfully on defendant’s track, the fact that he was wrongfully or unlawfully on its track, does not, in law, relieve defendant’s
The court instructs the jury that should they even believe from the evidence that Horace Scoville, deceased, was guilty of negligence or carelessness which contributed to his death; yet if they further believe from the evidence, that the agents or employes of defendant in charge of defendant’s engine or train of ears with which the injury was done, might, by the exercise of reasonable, ordinary care and caution have avoided killing deceased, then they will find for the plaintiff".
It is insisted that these instructions are erroneous in this, that they omit to tell the jury that the negligence to make defendant liable must have occurred after its servants either knew, or might, by the exercise of ordinary care, have known of the danger to the deceased. This point we think is well taken, it having been held in the case of Isabel v. H. & St. J. R. R. Co., 60 Mo. 482, that “ in order to make a defendant liable for an injury when the plaintiff has also been negligent, or in fault, it should appear that the proximate cause of the injury was the omission of defendant, after becoming aware of the danger to which the plaintiff" was exposed, to use a proper degree of care to avoid injuring him.” So in the case of Harlan v. St. L., K. C. & N. R. R. Co., 65 Mo. 22, it is held that, “ when it is said in cases where plaintiff" has been guilty of contributory negligence, that the company is liable, if by the exercise of ordinary care it could have prevented the accident, it is to be understood that it will be so liable if, by the ex-
Eor the error pointed out in the above instructions, the judgment will be reversed and cause remanded. It may be proper to remark that the third instruction asked and refused by the court when modified according to the rule laid down in the case of Harlan v. St. L., K. C. & N. R. R. Co., supra, should be given.