203 Mo. 261 | Mo. | 1907
This is an action by Eaymond Wahl, a minor, who at the time of his injury was of the age of five years. The action was brought through his mother, who was duly appointed as his next friend pHor to the filing of the petition. The petition alleges that the defendant, at the time "of the injuries complained of, was a corporation by virtue of the laws of Missouri, and used and operated a railway and the cars
The action was originally brought against both the St. Louis Transit Company and the United Rail
The evidence for the plaintiff tended to prove that Twenty-second street and Montgomery street are both public-highways in the city of St. Louis. Montgomery street runs west from Twenty-second street, but does not cross Twenty-second to the east; that on the third of June, 1903, the Transit Company, the defendant herein, operated a single track railway on Twenty-second street, on which its cars, ran north; that the plaintiff’s mother lived three doors from the corner of Montgomery and Twenty-second streets at house numbered 2205' Montgomery street, and plaintiff’s father was dead. At the time of the injury, the plaintiff was five and a half years old and lived with his mother. On the third day of June, 1903, the Laclede Gas Light Company was engaged in putting some gas pipes just north of the north crossing of Montgomery and Twenty-second streets, and for this reason had excavated a trench in Twenty-second street, a foot or so north of said north crossing. The Gas Company in making the excavation in Twenty-second street near the north crossing thereof on Montgomery street, had by their servants thrown the dirt taken out of the trenches into a pile on the north side of the trench and this pile of dirt extended up to within a foot or so of defendant’s track. The plaintiff was playing at this pile of dirt, filling a box he had with loose dirt and then emptying it again. The plaintiff’s evidence tended to show that while, at play on this pile of dirt, he was in dangerous proximity to a passing car if he should move or slip toward the track. A north-bound car on defendant’s track .came along about five o’clock that afternoon. The motorman on this car, seeing the
There was a sharp conflict in the evidence. On the part of .the plaintiff the evidence of two of the employees of the Gas Light Company, Sims and Murphy, tended to show that they were working in the trench, which was about two and a half feet wide and from one to four feet deep, north of and adjoining the north crossing of Montgomery street and running east and west from the car track toward the curbing. Murphy was digging in the trench and Sims was shoveling away the earth and macadam that Murphy had thrown out within about a foot of the trench and on the north side thereof and running its full length. The earth was piled up a foot or two high. Sims testified that he was standing on the north side of the hole at the west end near the track and the little boy, the plaintiff, was playing with the dirt that he piled up there; that the little boy was standing near enough to the track, if he had remained still, for the motorman to have reached out with his hand and touched him, or about three feet from the side of the car; that when the motorman reached out, the plaintiff started to run. The plaintiff was looking at the car as it came towards him; when the motorman reached out after him he got scared and ran down and around the pile of dirt and went in front of the car; the car did not stop at the crossing,
The defendant’s evidence tended to establish that the ditch or trench dug by the gas men ran north and south within four or five feet of the east side of the defendant’s track; that the earth thrown up had formed a mound parallel with the track; that when plaintiff was struck by the car, he was from sixty-five to one hundred feet north of the north crossing of Montgomery street; that the car in question made a stop at the north crossing of Montgomery street and a passenger alighted there; that-plaintiff was playing on the mound of dirt in the street; when the car was within ten or fifteen feet of plaintiff he turned around, saw it and started in a run across the track in front of the moving car; when on or about the east rail of the track and within about five feet of the car, he stumbled and fell between the rails; that upon seeing the plaintiff start towards the track, the motorman reversed the car and brought it to a stop within some ten or fifteen feet
Mr. J. J. Cordes testified that the plaintiff walked to about a foot and a half from the rail of the track, then stopped; when the car got within five or ten feet of the boy he looked up1 again; he supposed he was going across the track to his companions, and just then the boy happened to fall there on the track and the car came along and the motorman could not stop it in time to prevent striking him. On cross-examination he stated that the boy was in about the middle of the roadway between the track and the curb on the east, and he thought the roadway was about six feet, that would make the boy about three feet from the track. The boy then walked towards the track, the car was then ten or fifteen feet away from him and he walked about a foot and a half from the rail, the car was about ten or fifteen feet from him, he stopped right there and looked at the car, then the motorman rang the bell, then the boy made to cross the street, and he must have stumbled over something and fell inside of the track, he got about a foot within the rails. The car was about five feet from him when he stumbled. The right front gate of the front platform was open.-
At the close of the evidence the court gave the following instruction for the plaintiff:
“If the jury find from the evidence in this case that on the 3rd day of June, 1903, the defendant wás operating the railway and car mentioned in the evidence, and if the jury find from the evidence that on said day Twenty-second street at the places mentioned*269 in the evidence, was an open public street within the city of St. Louis, and if the jury find from the evidence that on said day the plaintiff was on said Twenty-second street north of Montgomery street near defendant’s track, and that at said time the plaintiff was of tender years and without discretion to understand the peril of being struck by defendant’s car, and if the jury find from the evidence that as defendant’s car approached the place where the plaintiff was SO' upon said street defendant’s motorman stepped on the step of the front platform of said car and reached with ' his hand towards the plaintiff and frightened him, and if the jury find from the evidence that the plaintiff was thereby and by reason of his want of discretion, caused to run in front of said car and to be knocked down, dragged and injured by said car, and if the jury find from the evidence that defendant’s motorman did not exercise ordinary care in so reaching towards the plaintiff and causing him to be frightened and that thereby the plaintiff was so caused to sustain said injuries, then plaintiff is entitled to recover.”
The court also instructed as to the credibility of witnesses, and gave the usual instruction on the measure of damages.
The defendant requested the court to instruct the jury: “If you find from the evidence in this case that plaintiff went suddenly upon the north-bound track in such close proximity to defendant’s moving car as to render it impossible for the motorman in charge thereof by the exercise of ordinary care and with the use of the appliances at hand to stop said car in time to avoid striking plaintiff, then he is not entitled to- recover and your verdict must be for the defendant.” The court refused this instruction as asked, but added to it the words, “Unless you believe he was caused to so go
The jury returned a verdict for the plaintiff and assessed his damages at five thousand dollars, and the judgment was rendered accordingly. Within proper time the defendant filed its motion for a new trial and in arrest of judgment, which were overruled, and the defendant appealed to this court.
I. Only two assignments of error are made by the defendant for the reversal of the judgment. The first point is that the first instruction given for the plaintiff did not submit to-the jury any act of the motorman which can lawfully be held to be negligence; that the act of negligence submitted by said first instruction is not an act alleged by or which appears from the petition to have been within the scope of the duty of the motorman. The petition alleges that the defendant herein was a corporation and was using and operating" a railway and cars for the transportation of persons for hire from one point to another in the city of St. Louis, and that Twenty-second street was an open public street in said city, in which the defendant had a track, and that on the day. of the injury to plaintiff, the plaintiff was standing near the defendant’s said track and by reason of his youth and want of discretion was in danger of being struck and injured by defendant’s north-bound car then approaching the place •where he'stood near the said track, and that the motorman of said car negligently left his post on said ear where he could control and manage it and negligently
In Snyder v. Railroad, this court cited with approval the case of Wilton v. Railroad, 107 Mass. 108, in which it appeared that the plaintiff, a girl of nine years of age, was walking with several other girls upon the Charleston bridge about seven o’clock in the evening, when one of defendant’s horse cars came along very slowly and the driver beckoned to the girls to get on, they thereupon got on the front platform and the driver immediately struck his horses, when by reason of their sudden starting, plaintiff lost her balance and fell so that one of the wheels passed over her arm. It was admitted that the plaintiff was not a passenger for hire and that the driver had no authority to take the girls upon the car and carry them unless such authority was implied from the fact of his employment as driver; the court said: “The driver of a horse car
The facts of this case clearly distinguish it from Snyder v. Railroad, supra. Here the negligent act charged pertained directly to the duties of the motorman as such, among which, as we have already said, was his duty to so manage his car as not to negligently injure- pedestrians, whether adults or infants of tender years, and to warn them when apparently in danger, of the approach of his car, and the charge is that he negligently so performed that duty as to frighten a child with no discretion and too young to appreciate his danger and thereby caused him to run upon the track in front of the moving car and to be injured. This was the method resorted to by the motorman to guard the child from being run over. It is true the defendant insists there was no proof of what the purpose of the motorman was in making the motion to the child with his hand. The motorman denied that he made such a motion, but the jury evidently found that he did and ascribed to him a good motive rather than a bad one. The jury were justified in holding that he adopted this method of warning the child. Taking the defendant’s own witness Cordes’ testimony, it appears that the child was standing within a foot and a half of the rail when the car was yet ten or fifteen feet from him. In such circumstances, ordinary care would have suggested to the motorman, considering the tender years of the plaintiff, to slow down his car and stop if.necessary until he was assured of the safety of the child. The law made it his duty not to run over children in the street and the jury found that the very act' that he did was in trying to serve his master by scaring the child away from its dangerous position. Under all the evi
Defendant, however, urges as another objection to this instruction of the plaintiff, that it fails to submit to the jury that the act of the motorman was within the scope of his duty as a motorman. We do not think this position is tenable. The defendant asked no instruction of the court to the effect that this act of the motorman was not within the scope of the motorman’s duty and the case was evidently tried on both sides on the theory that, if the motorman was guilty of the acts charged in the petition, and left to be found by the jury in the plaintiff’s instruction, the defendant was liable. That the instruction was correct as far as it went there can be, in our opinion, no doubt, and the fact that the court did not go further and direct the jury specifically to find that it was within the scope of the motorman’s employment, we have often ruled is not error, but it is the duty of the opposite side to ask a proper instruction to supply the defect which he deems necessary in those of his adversary. [First National Bank v. Ragsdale, 171 Mo. 168; Wheeler v. Bowles, 163 Mo. 398; Farber v. Railroad, 139 Mo. l. c. 285.]
Our conclusion is that neither of the objections to this instruction is well taken.
H. It is also urged that the verdict is a result of passion and prejudice on the part of the jury. We are asked by learned counsel to reject the testimony of Sims and Murphy as utterly unworthy of belief. We have read the testimony on both sides and while there is a conflict in the evidence, it was for the.jury who saw