272 Mo. 53 | Mo. | 1917
Plaintiff, a minor three years of age, sues, by next friend,.to recover the sum of thirty thousand dollars for the loss of both feet. The injury is alleged to have been caused by the negligence of the defendant in the operation of its street car. Trial was had in the circuit court of Jackson County, at Independence, resulting in a verdict for the defendant. Plaintiff has duly appealed.
The evidence was substantially as follows:
A lady passenger on said car was standing near the front vestibule, and as the front of the car passed the grocery store she saw the child standing in the street at a point about half way between the car and the curb. The child was facing the car. The witness said the child might have been walking slowly, but she was not sure.
One of the gentlemen passengers testified that as the car was crossing Union Street he saw the motorman look out the door and heard him apply the air. The witness then looked out the window to see what the trouble was, and saw the child lying face downward with its feet on the track, about one foot in advance of the rear trucks. Immediately thereafter the child screamed and the car was brought to a stop.'
A clerk in the corner grocery looked out as the car was passing. He states that it looked like the child had his hands on the side of the car along about the center of the car. He saw the little boy fall and the rear wheels run over his feet. This witness was the first one to the injured child. He picked the child up, carried him in and called a doctor.
Plaintiff used the motorman as a witness. The motorman testified that he first saw the child just as he started his car from the west side of Union Street. At that time the- child was on the sidewalk in front of the grocery store. About the time the front of the car reached the center of Union Street, he saw the child step down into the street, facing north and looking into the motorman’s face. When the motorman saw the child step into the street he states that he turned off the power, lowered the speed to about one mile an hour, so that the car was barely moving, and got the car under perfect control. He stated that he could not tell what the child would do; that he feared the child would get in front of. the car and for that reason took the above precautions. He stated that the child did not take any further steps after stepping into the street, hut was standing in that position (a distance of eight or nine feet from the south edge of the car) when the front end of the car passed the child. The motorman last saw the child through the door of the front part of the car. The child was then at a point due south of the front trucks and, according to the motorman’s testimony, was
The defendant introduced in evidence the original petition in the case for the purpose of showing that under the allegations of that petition it was stated that the child stood in the street, and that the petition contained no allegation that at any time the child was approaching or attempted to cross the street.
In rebuttal the plaintiff offered a portion of the motorman’s deposition which was taken after the original petition was filed.. In the deposition the motorman was reported as testifying that he first saw the child next to the curb and' that the child took a step or two towards the car. This was offered for the purpose of explaining why the amended petition was filed.
Appellant attacks defendant’s instructions 1, 2, 3, 4, 6, 7 and 8 which were as follows:
“1. The court instructs the jury that a motorman in charge of a street car is only required to exercise toward persons near its tracks ordinary care to prevent injury to persons if near the track and if he does this he is guilty of no negligence. If. you believe that the motorman, Sherman, did all that a reasonably prudent person under the same circumstances would have done to prevent injury to plaintiff, then he was guilty of no negligence and plaintiff cannot recover in this case and your verdict must be for defendant.
“2. The court instructs you that before plaintiff is entitled to recover in this case plaintiff must -show to your reasonable satisfaction by a preponderance of*61 the credible evidence, that is, by the greater weight of the credible testimony offered in the case, that defendant’s motorman was guilty of negligence in not taking such precautions to avoid injuring the plaintiff after the motorman saw him in a position of danger, if you believe he was in a position of danger, from being run over by the rear wheels of the car, as a reasonably prudent person would have done under the same circumstances, and unless you so find, then plaintiff cannot recover in this case and your verdict must be' for the defendants.
“3. The court instructs the jury that if you ber lieve and find from the evidence in this case that at the time the front trucks of the car safely passed the plaintiff, he was standing still and that there was nothing in his manner to indicate to the motorman that the child would run against the car or under the rear trucks and that a reasonably prudent person situated as the motorman was, would not have reasonably anticipated that the child would run under the rear trucks of the car and that the motorman took all the precautions to avoid injuring the child that a reasonably prudent person would have done under the same circumstances then plaintiff cannot recover in this case and your verdict must be for the defendants.
“4. The court instructs the jury that if you believe and find from the evidence that- a reasonably prudent and careful person placed in the position of the motorman at the time would not have. reasonably anticipated that plaintiff, after the front trucks of the car had safely ^passed him, under all'the facts and circumstances detailed in evidence, would run against the car or under the rear trucks, then the motorman, Sherman, did all that was required of him, and he was guilty of no negligence, and plaintiff cannot recover, and your verdict must be for the defendants.
"6. The court instructs the jury that this case should be considered by you the same as if it was a contest between two persons of equal standing in the community; the fact that one of the parties is a corporation*62 should not and must- not affect your minds in any way in the consideration of the case; the rights of the parties should and must be determined upon the evidence introduced, and the instructions given to the jury, which are the law and the only law to guide you in your deliberations.
“7. The court instructs the jury that if you believe and find from the evidence that plaintiff’s injuries were due to an unavoidable accident and not to any negligence (as defined in other instructions) on the part of defendants’ motorman in the management of defendants’ car, at the time, then plaintiff cannot recover, and your verdict must be for the defendants.
“8. The court instructs the jury that in this case the burden of proof rests upon the plaintiff to prove to your reasonable satisfaction, by the preponderance of the credible testimony, that defendants were guilty of negligence as submitted to you in these instructions; and unless you believe and find from the evidence in this case that the plaintiff has proven, by a preponderance of the credible testimony, to your reasonable satisfaction that the defendants were guilty of negligence as defined in these instructions, and that such negligence was the proximate causae of the injuries complained of, then you cannot find for the plaintiff.”
I. It is contended by appellant that the court erred in giving defendant’s instructions, numbers 1, 2, 3, 4, 6, 7 and 8. The instructions will be found copied in full in the foregoing statement.
We think the above instruction clearly erroneous. By that instruction the defendant was virtually relieved from liability if the motorman failed to see plaintiff in a position of danger from being run over by the rear wheels of the car, whether such failure to see was or was not the result of negligence upon the part of the motorman. That the child did get into a position of danger from being run over by the rear trucks is very clear from the evidence; because he was, as shown by all the evidence, run over by the rear wheels of the car. It also appears from the evidence that the motorman did not see the child just as it was approaching or about to come in contact with the rear wheels. So far as the testimony discloses, the motorman last -saw the child when he was standing alongside of the front trucks and
Other errors urged by appellant are not such as will likely reoccur upon another trial. For that reason we deem their discussion now unnecessary.
We are unable to agree with the contention that the case should not have been submitted to the jury. In passing upon a demurrer to the evidence, plaintiff is entitled to have the same viewed in its most favorable light.
There was evidence in this case tending to show that this little child, less than three years of age, stepped from the curb, into the street as the car slowly approached; that as the front of the car passed the child he was standing half way between the car and the curb (if that were true the child was approximately five feet from the nearest rail); the motorman saw the child and watched him only until the front trucks had passed beyond the position of the child; the motorman then ceased watching the child and started to increase the speed of the car; he explains that his reason for watching the child up to that point was because “You can’t tell what a child will -do.” Evidently after that time the child moved a step or two closer to the car and placed its hands against the side thereof and was thrown off its feet and fell in such a way as to engage his feet under the rear wheels of the car.
Would all reasonable minds agree in saying that when a child three years of age is seen, unattended, standing within five feet of a street car track (to which position he had moved from the curb while the street car, moving very slowly, had approached a distance of twenty feet, half-way across Union Street) the duty of the persons operating the car, to exercise ordinary care for the child’s safety, had been fully performed by watching the child until danger from the front trucks of the car was past and that no precautions should have been taken to protect the child from possible action on its part which might bring it within the danger of the rear wheels'? We think not. Some reasonable minds might suggest that the child, because of its tender years. and, therefore, its likelihod of “doing the wrong thing at the right time” was in a position of peril and that the car should have been stopped until the danger was averted. [Simon v. Railway, 231 Mo. 65, l. c. 78]. Other reasonable minds might suggest that if the car were to be moved forward at all under the conditions there existing that it should be' done in a watchful and careful way so that the car could be stopped in time to avert any actual danger that might develop. [Simon v. Railway Co., supra, l. c. 78-80].
The mere fact that the car was moved very slowly while it passed the child does not relieve the situation. A car moved, slowly, without keeping a lookout for the child, was just as likely to injure the plaintiff as - if it were moved rapidly. In fact the slower the movement the greater the time allowed for the child to move under the same.
The matter fully and carefully considered, we are of the opinion that it was for the jury, properly in
The judgment is reversed and the cause reminded.