231 Mo. 65 | Mo. | 1910
This is an appeal from an order of the circuit court of Jaeksoh county granting the plaintiffs a new trial.
The action was for ten thousand dollars, brought by the plaintiffs for the death of their minor daughter. The trial resulted in a verdict for the defendant, and the court set aside the verdict and granted plaintiffs a new trial on the ground that the court erred in giving instruction “number 3A” on behalf of the defendant.
The petition stated that the plaintiffs were husband and wife and respectively the father and mother of Sarah Simon, who was at all times a minor and unmarried; that the defendant was at all the times mentioned a corporation operating an electric car line over and upon the streets of Kansas City, among other streets an electric car line and electric cars over and upon Third Street between Walnut and Grand Avenue; that on or about July 11, 1905, about five o’clock in the afternoon, on said Third Street and about sixty feet west of Grand Avenue, Sarah Simon, the minor child of plaintiffs, while attempting to cross said Third Street from the south side thereof to the north side thereof, the said Third. Street running east and west, was run .into, her left leg fractured, and she was terribly injured otherwise, by an electric car which was then and there run, conducted and managed by the employees of the defendant, and as a result of said injuries said Sarah Simon died within ten hours thereafter. That the said Sarah was thus run into and injured by
The answer was a general denial and a plea of contributory negligence on the part of the said Sarah Simon and the plaintiffs directly contributing to the injury of the said Sarah.
The evidence tended to show that on July 11, 1905, the plaintiffs resided on the north side of Third Street just east of the alley between Walnut Street and Grand Avenue in Kansas City. They were the parents of several minor children, and among them the deceased child Sarah, aged four years and three months. The father conducted a clothes pressing shop at said place, and his family lived in the rear of it. Third Street runs east and west. Almost directly across the street from the plaintiff’s business place and home, Mrs. Barman, with her husband, conducted a millinery establishment. In the afternoon of the 11th of July, 1905, Mrs. Barman, who testified she-was a childless woman, went over to the plaintiffs’ residence and on the parents’ consent took their three minor children across the street to her business place. They played around her establishment inside of the house or store. She had the youngest child on her knee and
George Chapman testified that he was walking along Third Street, proceeding east, between Walnut Street and Grand Avenue, on the south side of the street, and' passedThe little girl Sarah about the time she was leaving the curb to cross the street; that at the time the child first started in.the street, the car was at the Walnut street curve; that he stopped four or five feet after he passed her and leaned against the iron post, one of the posts that supports the electric line of the defendant. He saw the child standing four or five feet from the curb in the street; that the child started again, and when she did so the car was about to the vacant lot west of the alley. He saw she was in danger; there was no object between the child and the street car. The witness heard no bell, and the car’s speed was about five or six miles an hour. The child toddled, did not run. She was dragged six or seven feet after she was struck. A colored policeman took the child from under the car.
Edwin J. Shannahán testified that he had made measurements for the plaintiffs, and that it was seventeen feet and four inches from the south curb to the rail at the alley; that it was sixty-one feet and seven inches from the alley to Grand Avenue, and twenty-nine feet and one inch east of the east line of the alley to the east line of the door in Barman’s place; that the vacant lot alluded to by Chapman in his testimony was over forty feet west of Mrs. Barman’s door, out of which the child came.
Mrs. Bernstein testified that she was coming from
Mrs. Emma Bernstein testified that she saw the child and then saw the car about fifty feet on the other side of the alley. She'raised her hand and hallooed to the motorman, but he was looking to the other side. He paid no attention. No bell was rung.
Lee J. Hill testified that he was an ex-motorman; that he had operated similar cars to this one over similar grades; that this grade was three or four per cent, and in this connection it may be remarked that Mr. Satterlee, defendant’s assistant superintendent, corroborated this witness as to the grade of the track. Hill testified that this car, under the circumstances in evidence, could have been stopped within ten to fifteen feet. The motorman. himself testified that he stopped the car within from twenty to twenty-five feet.
The father of the deceased child testified that at the time the child was hurt, he was at work in his shop on the north side of Third Street between Grand Avenue and "Walnut Street and just east of the alley, which extends south through the block; that there was no window in the west side of his shop, but there were large windows in the front; that he could see about fifty feet up towards Walnut Street through the front window ; that from time to time he looked across the street and saw his children over in Mrs. Barman’s store; that
Irvin Schofield, on behalf of the defendant, testified that he was the motorman in charge of the car which killed the child and that the accident happened at 4:55 p. m. He said, “Well, I was coming from Third and Walnut going down towards Grand; I got probably two-thirds of the way down. There is an alley there; I got somewhere close to the alley, maybe not quite to it, or maybe a little past it, and ahead of me between the curbing and the rail, I seen a little child starting towards the track running fast, and I seen that we were going to come together, the way we were going, and I hallooed, ‘Look out!’ at the child, just like that, as loud as I could, and applied the brakes at the same time. By that time we had pretty near come together, we had come close and the little child ran right in ahead and back of the fender and fell back and I had the car pretty near stopped.” On cross-examination he testified that he did not see the child on the curb; that she was probably half way between the curbing and the rail when he first saw her, and she was running towards the track. The only thing he did to avert the injury was to apply his brake and hallooed to the child. Pie was moving five or six miles an hour; that he was about to the alley when he first saw her; that'he stopped the car with a hand brake within from twenty to twenty-five feet.
Peter Campbell, a witness for the defendant, did not hear the bell ring; he was a police officer; that he and Sergeant Lynch and Mr. Thompson were standing somewhere near Third Street and Grand Avenue, looking west up Third Street, and saw some children playing on the sidewalk up the street; saw a little girl start across the street; at the time she started the car
Jerry Lynch, a sergeant of the police, testified in behalf of the defendant. His evidence is substantially' the same as that of Peter Campbell, except that he testified that the motorman hallooed, but he did not hear any bell rung, and that at the time the child hesitated in the street the street car was close to the alley.
William Spenamen, for the defendant, testified that he was looking out of his window on the north side of the street, did not see the accident, but saw the child start to run across the street and the car came between him and the child and he did not see her any more: that when the child was stepping off of the curb the front of the car was about at the west line of the alley. When the child was half way between the curb and the track the car was about one hundred feet west of the little girl. The first motion on the part of the motorman to use his brake was after the car had gotten across the alley.
This was substantially the evidence in the case.
Said instruction number 3A is in these words: “The court instructs the jury that the fact that a person leaves the sidewalk and comes near the track is not enough in itself to impose the duty on the motorman to stop the car; there must be something noticeable in the conduct of the person coming towards the track to apprise the motorman that such person is about to enter into a position of danger, to make if incumbent on the motorman to stop the car. Now. if the jury believe from the evidence, that the motorman saw the child leave the sidewalk and come into the street and stop, before getting to the track, then the motorman in charge of the car in controversy had the right to proceed with his car, and he was not required to stop the car until there was a movement by the child which indicated that it was about to run into a position of danger; and if the motorman, after seeing the child start towards the track after making its last stop in the street, used ordinary care with the means at his command, to stop said car and prevent a collision with the child, then there was no negligence, and the plaintiff cannot recover in this ease, and the jury must return a verdict for 'the defendant company.”
I. The defendant insists that the order of the circuit court granting plaintiffs a new trial should be
In Cytron v. Railroad, 205 Mo. l. c. 719, it was said by this court In Banc: “The motorman knew his car was bouhd to occupy, with crushing force, the very spot the child’s steps were directed to. It was obvious to the motorman that the child did not know that fact.” Under such circumstances it was said, “Both danger and duty began the instant the child left the sidewalk, bound headlong into peril.” [Livingston v. Railroad, 170 Mo. 452; Meeker v. Railroad, 178 Mo. l. c. 176; Heinzle v. Street Ry. Co., 213 Mo. l. c. 114; Cornovski v. Transit Company, 207 Mo. 263.] In this last mentioned case it was said: “Our very instinct teaches us that when a four-year-old child, unattended, leaves the curb of a sidewalk — that is, leaves a place of comparative safety — and heads across a street devoted to traffic in a great city, with a ear track twelve feet away on which a car is approaching, the little one
"We are cited, however, by the defendant to the decision of the Kansas City Court of Appeals in Gabriel v. Railroad, 130 Mo. App. 656, in which that court, in speaking of a child of six years of age, used this language: “But there was no evidence that there was any action upon the part of the child to indicate that she was unaware of her danger in time for the defendant’s motorman to have avoided striking her. The mere fact that a person is on the street with the evident purpose of crossing it while a car is approaching, is no evidence in itself that he intends to place himself in a position of peril.” Citing Reno v. Railroad, 180 Mo. 469. Reno v. Railroad was a case in which an adult was the plaintiff who walked across the streetcar track, in broad daylight, when there was no obstruction either way, but that case, as is pointed out in Heinzle v. Railroad, has no application to a case of a minor child of tender age, who is incapable of contributory negligence, and that decision did not follow the decisions of this court on this point.
But counsel say that this statement in the instruction is a mere abstract statement of the law, and we infer from this that in his opinion, even though it should be held erroneous with reference to the facts in evidence in this record, still it would not justify the circuit court in granting a new trial on account of its error. The remainder of the instruction must be considered, and it is in these words: “Now if the jury believe from the evidence that the motorman saw the child leave the sidewalk and come into the street and
In Jones v. Railroad, 201 Pa. St. 344, the injured child was not upon the track, but was walking upon another track upon which cars ran in an opposite direction, and the Supreme Court said: “She was not at that time, it is true, on his track [that is, the track of the motorman whose car ran over her] but he was bound to know that in her childish caprice she was as likely to cross over in front of his moving car as to go back to the pavement, and his duty the instant he saw her, or if exercising proper care and watchfulness, he ought to have seen her, was to stop or to so
Counsel for defendant properly concede that this court and other courts of last resort have placed the danger line for children further away from the track than for adults, and have held that it is the duty of a motorman to begin to stop his car sooner for children than for adults who are presumed to know the danger and to stop before going upon a car track, but insist that even these cases do not require a motorman to stop his car until there is some movement of the child indicating its intention to cross the track or come near enough to the car to put itself in danger of being-struck, and this is what this instruction declares, and it is in this that the error lies. We think this court announced the true rule as to children of tender age in Cornovski v. Transit Co., 207 Mo. l. c. 274, when it said: “Danger to the child and duty on the motorman’s part began the instant such a child left the sidewalk, bound headlong for the track.” Present in the street where horses, wagons, and cars were constantly moving in broad daylight, a child less than four and a half years old, with only a few feet between the curb and the car track, with its face to the track, every instinct of a normal man and universal experience teach him that the child is already in imminent danger, and the law having regard for human life requires a motorman in charge of a ponderous car on a public street to stop until the danger to the cMld is ■averted. He is not to speculate that it may not run upon the track, and cannot indulge the presumption which he may rndulge as to adults that it may not go into further danger; it has already entered into the danger zone. As said by the Supreme Court of Pennsylvania: “He was bound to know that in her childish caprice she was as likely to cross over in front of his moving car as to go back to the pavement, and Ms duty the instant he saw her, or if. exercising proper care
Moreover, this instruction was erroneous because it assumes there was evidence that the motorman saw the child leave the sidewalk and stop, whereas the motorman himself testified he first saw the child when it was only a few feet from the track, and another witness, officer Campbell, testified he did not think the motorman saw the child at all until the collision had occurred, and other witnesses testified the motorman was looking upward in the opposite direction from that from which the child approached the train. The instruction concludes: “If the motorman after seeing the child start toward the track after making its last stop in the street, used ordinary care with the means at his command, to stop said car and prevent a collision with the child, then there was no negligence and the plaintiff cannot recover in this case and the jury must return a verdict for defendant.” In a word, the jury were told that if the motorman used ordinary care after he saw the child start towards the track after making its last stop, then there was no negligence and no liability. Every other fact was eliminated from their consideration, nothwithstanding there was evidence tending to show the motorman was negligent in not Seeing the child and the jury might have believed
Especially harmful was the making the “last stop” the point when the duty of the motorman began, inasmuch as there was testimony that the little child stopped first at the edge of the curb' and then other testimony that it made another stop and then toddled on toward the track, and under this part of the instruction the jury were given to understand that the motorman was required to take no step to stop until after this last stop, though the whole evidence shows it was only momentary. Officer Campbell, a witness for the defendant, testified that she might have stopped a second, hot over that any way.
In our opinion this instruction was erroneous and harmful and occasioned the verdict against plaintiffs, and the circuit court did not err in so holding and in granting a new trial on that account.
II. But it is urged that even though the instruction was erroneous, the circuit court erred in granting a new trial because the court ought to have sustained the demurrer to the evidence and taken the case from the jury. The statement of the facts already set forth we think required the court to submit the question of defendant’s negligence to the jury under the first instruction given in behalf of plaintiffs, without the instruction 3A given in behalf of defendant.
III. As to the proposition that the verdict was for the right party, it is sufficient to say that the plaintiffs ’ evidence entitled them to have the jury pass upon the negligence of defendant under proper instructions, and we have held they did not have that privilege, and the learned circuit court so held.
It should also be said that instructions numbered 4 and 8 were improper in that they submitted to the jury whether the plaintiffs were guilty of contributory negligence in permitting the child to be upon the street. We think there was no evidence tending to show the plaintiffs were negligent in this regard.
In our opinion the circuit court had the right to grant a new trial and there was no error in its action in so doing, and the judgment is therefore affirmed.