Dunn v. Cass Avenue & Fair Grounds Railway Co.

• Decision Date: 24 June 1889
• Parties: Dunn, by next friend, Appellant, v. Cass Avenue & Fair Grounds Railway Company
• Court: Missouri Supreme Court

11 S.W. 1009

98 Mo. 652

Dunn, by next friend, Appellant, v. Cass Avenue & Fair Grounds Railway Company

Supreme Court of Missouri

June 24, 1889

Appeal from St. Louis City Circuit Court. -- Hon. A. M. Thayer Judge.

Affirmed.

A. R Taylor for appellant.

(1) Although the plaintiff was negligent, yet if the defendant by observing the ordinance, could have prevented the injury, the plaintiff is still entitled to recover. Kelly v. Railroad, 75 Mo. 139; Bergman v. Railroad, 88 Mo. 683; Scoville v. Railroad, 81 Mo. 440; Welch v. Railroad, 81 Mo. 472; Keim v. Railroad, 90 Mo. 324; Dunkman v. Railroad, 95 Mo. 244. (2) Under the evidence in the case there was a clear breach of the duty required by the ordinance in allowing the plaintiff, a child of tender years, to enter upon and leave the car whilst in motion. And it was clearly a question for the jury as to whether this was a contributing cause of the injury. Indeed it is certain that but for this neglect of the defendant to observe the ordinance the injury to plaintiff would not have occurred. Such neglect was a proximate cause. Evans v. Railroad, 11 Mo.App. 471; Patten v. Railroad, 32 Wis. 529; Winkler v. Railroad, 21 Mo.App. 106.

Leonard Wilcox and Nathan Frank for respondent.

(1) There was no error in refusing plaintiff's instruction, number 7, because instruction number 1 given by the court was substantially the same and possessed the merit of closer conformity to the pleadings. Nugent v. Curran, 77 Mo. 327; State v. Elliott, 90 Mo. 356; Ins. Co. v. Hauck, 83 Mo. 21. (2) It was not error to refuse plaintiff's instruction number 10 because there was no evidence that defendant was negligent as alleged with respect to its north bound car. Cotton v. Wood, 8 C. B. [N. S.] 570, 571; Powell v. Railroad, 76 Mo. 84, 85; Commissioners v. Clark, 94 U.S. 284; Dunn v. Railroad, 21 Mo.App. 201, 202. (3) If point 2 is not well taken, yet under the undisputed facts in this case, plaintiff cannot recover, if at the time of the accident he did not exercise care and caution commensurate with his age and capacity; so that it was proper to submit the issue of plaintiff's contributory negligence to the jury. Eswin v. Railroad, 96 Mo. 290; Boland v. Railroad, 36 Mo. 490; Ostertag v. Railroad, 64 Mo. 424; Yancey v. Railroad, 93 Mo. 437; Kelley v. Railroad, 88 Mo. 539; Lenix v. Railroad, 76 Mo. 91; Powell v. Railroad, 76 Mo. 82; Harlan v. Railroad, 65 Mo. 24; Cotton v. Wood, 8 C. B. [N. S.] 568, 570. (4) Appellant's instruction number 10 was properly refused because it permitted plaintiff to recover, even if he had been guilty of a want of care commensurate with his age and capacity. Eswin v. Railroad, supra.

Brace, J. Barclay, J., concurs in the result.

OPINION

Brace, J.

This is an action for damages for personal injury sustained by the plaintiff in being run over by one of the defendant's street cars. The jury found a verdict for the defendant from the judgment on which the plaintiff appeals.

The defendant operates two tracks, one used for north and the other for south bound cars, on Glasgow avenue. On the day of the accident, the plaintiff, a boy about nine years of age, while one of the defendant's cars was moving south on the west track, at usual speed, got upon the rear platform or step and rode there about two blocks, when just as a north bound car, heavily loaded with passengers, was approaching on the east track, and about to pass, the boy jumped off the car he was on, on the west side, moved two or three steps west towards the pavement, turned, ran in a northeast direction across the west track, behind the car moving south, into the team of the car moving north on the east track, on a down grade, which had just passed the south bound car. He struck the team about the middle or flank of the west horse, was knocked down and the car passed over his left leg.

The only errors assigned are giving an instruction for the defendant that there was no act of negligence shown by the evidence in the management of the defendant's south bound car, that was the proximate cause of the injury; and the refusal to give two instructions asked for the plaintiff. The first point was strongly urged and elaborately argued in the case of Dunn v. Railroad, 21 Mo.App. 188, upon the identical facts in this case and ruled adversely to the plaintiff, and we have no doubt of the correctness of the conclusion reached by that court. There is no analogy between this case and that of Winkler v. Railroad, 21 Mo.App. 99, or the other cases cited by plaintiff's counsel.

As to one of the instructions refused: The substance of it, in terms equally as favorable to plaintiff's case, was given in an instruction, by the court upon its own motion, and the plaintiff has no reason to complain on this ground.

The other is as follows:

"10. Although the jury should believe from the evidence that Charles Dunn did not use ordinary care commensurate with his age and discretion prior to and at the time that he was injured, yet if the jury believe from the evidence that the defendant's driver in charge of its car, by keeping a vigilant watch for persons upon defendant's track or approaching same and in danger of injury, would have seen the plaintiff Charles Dunn, at or near defendant's track and in danger of injury, and could, by...