99 Mo. 509 | Mo. | 1889
One of the defendant’s cable cars ran upon the plaintiff, a boy .three years of age, at the crossing of Ninth street and Gfrand avenue, in the City •of Kansas, crushing one of his legs, so that amputation became necessary. Hence, this suit by his next friend for damages.
The boy and his sister, ten years of age, went to a building about a block-distant from the crossing, by permission of their mother, to gather kindling wood. She lived close to the same place, and says she let them go because she was not able to buy kindling. The children crossed over the tracks from the south to the north side of Ninth street, and thence went east on the sidewalk to Grand avenue, and thence eastward across that street towards their home. The car ran against the boy at a point about thirty-five or thirty-seven feet east of the west curb of Grand avenue.
Of two witnesses, who were nearly a block distant, one of them testified : ‘£ When I first saw the boy he was three or four feet from the lamp post at the northwest corner of the streets. He ran straight from that point until the car hit him. It did not seem to last longer than the snap of the finger.” The other witness says : “The boy was trying to cross the street; there was a little girl ahead of him; the last I saw of her she was going.” Mr. Vincent, who was twenty or thirty feet distant, says he first saw the boy when near the west
Mr. Davis testified for the defendant: “I was on the north side of the gripcar, about three seats from the front. I saw the girl and boy starting over the crossing; just as we swung up on top of the hill, the .girl stopped and turned her head and looked at us. As the gripcar came around the curve, she ran back, screaming, and threw up her hands, leaving the child by himself; he went in front of the train. At the time the girl turned and ran back, she was three or four feet from the track; the gripman then had no time to stop the car.' I first saw the child when about one step from the sidewalk; he had a pail, or little bundle in his hand.”
The gripman testified: “I saw the child just as I was about to strike it; it was not more than a foot from the car; I stopped the car within about six feet after I saw the child.” On cross-examination he says : “When I first saw the child it was at the lamp post on the sidewalk. .There was a young lady close to him, a rod from him; saw no children near the boy. I did not see any little girl; I just looked out and noticed everything was clear and went on; I did not look any more. The first I knew the child got across and was struck. Q. “ These gripcars have closed windows all around ? ” A. “Yes, sir.” Q. “ Standing at the grip, you could see this place, between the lamppost and where the-boy was hurt?” A. “Yes, sir.” Q. “ If you had been looking ? ” A. “You could see a part of the way there ; you could see it all by stooping down.”
, If the child ran in front of the car and the gripman was free from negligence, then there ought to be no recovery. This proposition was placed before the jury in very clear terms by an instruction given at the request of the defendant wherein it is said that, before the plaintiff can recover, he must prove that he was injured in direct consequence of the negligence or carelessness of the person in charge of the defendant’s car.
But it is said there is no evidence that the defendant was operating the road at the time of the accident, and that some of the instructions are bad because they assume that it was the defendant’s car which ran over the plaintiff. No such question was mooted'in the trial court. Besides, it may be inferred from the evidence of the brakeman and superintendent that defendant was operating the road. But aside from all this, the answer says the plaintiff’s mother contributed to the injury by placing him in charge of a careless person who allowed plaintiff “to get in front of defendant’s cars
The court, at the request of the plaintiff, gave this instruction:
“3. The court instructs the jury, as a matter of law, that negligence on the part of the little girl, who was with the child injured, or near him at the time of said injury, cannot affect the question of the- right of plaintiff to recover in this case.”
But refused to give the following instruction asked by the defendant:
“ 2. If the plaintiff’s mother and natural guardian permitted plaintiff to go on or near the tracks of defendant, alone or in charge of a careless or incompetent perl son, and the carelessness and incompetency of such person contributed directly to plaintiff’s injury,.then the finding will be for the defendant.”
Hartfield v. Roper, 21 Wend. 615, is cited to show that the court erred in its ruling on both of these instructions. The substance of the doctrine there asserted is, that, where a child of such tender years as not to possess the discretion to avoid danger is permitted by its parents or guardian to be in the public highway, the negligence of the parent or guardian will defeat a recovery in a suit by the child. This doctrine has been followed in some of the states. It is sometimes placed^ on the ground that the parent is the agent of the child, and other cases place it on the ground of identity* between the parent and child. It probably stands as! well on no ground at all as it does on either of them. The whole doctrine has been severely criticised by some of our best text-writers and denied by many courts. This court more than twenty years ago repudiated the doctrine in the case of Boland v. Railroad, 36 Mo. 484.
Even in the case of a suit by the parent all the circumstances are to be taken into account, and if the parent took as much care of the child as reasonably prudent persons of the same class and in the same situation in life ordinarily do, then the parent is not to be hold guilty of-such negligence as will defeat his action. 1 Shear. Redf. on Neg. [4 Ed.] sec. 72; O’ Flaherty v. Railroad, 45 Mo. 70; Frick v. Railroad, 75 Mo. 542. The negligence of the parent to defeat his or her action must be the proximate cause of the injury. Isabel v. Railroad, 60 Mo. 75. Unless these principles !• of law are adhered to the poor of the land will be f deprived of all benefit of the public schools in our | cities which cannot be reached but by passing over and along the public highways. But no more need be said upon this subject for this is not a suit by the parent or guardian.
Appellant contends that the court erred under the modified doctrine stated in Stillson v. Railroad, 67 Mo. 671. There the little girl, eight years old; was in the
The girl in the present case was, to some extent, the protector of the little boy, but she was a child only herself, and it is both unreasonable and inhuman to say that she filled the position of a parent or guardian. It might as well be said of twin children, out of the sight of the mother, that each is the responsible guardian for the other. If the girl was to some extent negligent that would not relieve the defendant from the exercise of due care. The Stillson case does not profess to disturb the former ruling of this court, and it is believed
It follows from what has been said that the court did not err in its ruling upon these two instructions. In other instructions asked by the defendant the jurors were told in clear terms that before they could find for plaintiff he must prove that he was injured in direct consequence of the negligence of the person in charge of defendant’s car; that if the gripman was using ordinary care in looking out and attending to his business, but did not see the plaintiff in time to stop the car before running over him, then there was no negligence on his part; and that ordinary care means that degree of care which an ordinarily prudent and careful person would exercise under like circum stances. The plaintiff ’ s instructions are in accord with those given for defendant, and no substantial objection is made to them. The judgment is therefore affirmed.