McGee v. Wabash Railroad Company
| Decision Date | 25 November 1908 |
| Citation | 114 S.W. 33,214 Mo. 530 |
| Parties | CHARLES M. McGEE and RUTH J. McGEE, Appellants, v. WABASH RAILROAD COMPANY |
| Court | Missouri Supreme Court |
Appeal from Daviess Circuit Court. -- Hon. J. W. Alexander, Judge.
Affirmed.
E. M Harber and J. A. Selby for appellants.
(1) The evidence was abundant to establish defendant's failure to comply with the provisions of section 1102, Revised Statutes 1899. This made a primafacie case against defendant requiring the submission thereof to the jury even if deceased had been an adult instead of a thirteen-year-old child. Huckshold v. Railroad, 90 Mo. 548; Crumpley v. Railroad, 111 Mo. 152; Lane v. Railroad, 132 Mo. 4; Atterbury v. Railroad, 110 Mo.App. 608; Green v Railroad, 192 Mo. 131; Smith v. Railroad, 19 Mo.App. 120; McNulty v. Railroad, 203 Mo. 475; Lange v. Railroad, 106 S.W. 665. (2) (a) The plaintiffs' child, thirteen years and one month old at the time of his death, was required to exercise such care and such care only as a child of like age and intelligence would have used under like circumstances, and whether he used such care was for the jury. Boland v. Railroad, 36 Mo 484; O'Flaherty v. Railroad, 45 Mo. 70; Ostertag v. Railroad, 64 Mo. 421; McCarthy v. Railroad, 92 Mo. 536; Eswin v. Railroad, 96 Mo. 290; Williams v. Railroad, 96 Mo. 275; Dlauhi v. Railroad, 105 Mo. 645; Spillane v. Railroad, 111 Mo. 555; Burger v. Railroad, 112 Mo. 238; Schmitz v. Railroad, 119 Mo. 256; Payne v. Railroad, 129 Mo. 405; Spillane v. Railroad, 135 Mo. 414; Ruschenberg v. Railroad, 161 Mo. 70; Anderson v. Railroad, 161 Mo. 411; Van Natta v. Railroad, 133 Mo. 13; Campbell v. Railroad, 175 Mo. 161; Woods v. Railroad, 188 Mo. 229; Holmes v. Railroad, 190 Mo. 98; Lange v. Railroad, 106 S.W. 660; Duffy v. Railroad, 19 Mo.App. 380; Gass v. Railroad, 57 Mo.App. 574; Frye v. Railroad, 111 Mo.App. 324. (b) Indeed, it may be conceded, which we by no means do, that the act of this child, when measured by the standard applied to an adult person of ordinary prudence, was negligent, yet this would by no means deprive these plaintiffs of the right to have the jury pass upon the question as to whether or not such an act was negligent in this child. Burger v. Railroad, 112 Mo. 249; Ruschenburg v. Railroad, 161 Mo. 86; Payne v. Railroad, 129 Mo. 405; Spillane v. Railroad, 111 Mo. 555; Holmes v. Railroad, 190 Mo. 98; Frye v. Railroad, 111 Mo.App. 324; Railroad v. Gladmon, 15 Wall. 401. (3) It is shown by the testimony of engineer Carter that the train killing plaintiffs' child was running at the time it struck this crossing from fifty to fifty-five miles per hour; that he could have seen this crossing when the train was within fifty feet thereof; that the fireman could have seen the crossing when three hundred or four hundred feet distant from it; that he, Carter, did not see the boy at all before he was struck; that when struck he was near the west rail; that one more step and he would have got over; that if even the service application of air had been applied when the fireman first saw or might have seen this child it would have reduced the speed of the train before reaching the crossing one-half. In other words, it is shown that had these employees in charge of this engine been, as the law exacts they should, when approaching such dangerous crossing at such furious rate of speed, where the public has equal rights, on vigilant watch and lookout to prevent such catastrophes as this, the death of this child could have been avoided, and the law exacts that they both, engineer and fireman, should have observed under the circumstance in proof the perilous condition of deceased at the earliest opportunity presented therefor, and that after his position might have been known, if his injury and death could have been averted, and it clearly appears in the evidence of engineer Carter it could, the defendant is liable, and the case could well have been submitted to the jury upon this issue. Livingston v. Railroad, 170 Mo. 452; Hinzeman v. Railroad, 182 Mo. 611; Murray v. Railroad, 108 Mo.App. 501; Welsh v. Railroad, 81 Mo. 466; Dunkman v. Railroad, 95 Mo. 232; Bunyan v. Railroad, 127 Mo. 12; Guenther v. Railroad, 108 Mo. 18; Rine v. Railroad, 88 Mo. 392; Frick v. Railroad, 75 Mo. 595; Kelley v. Railroad, 75 Mo. 138; Jager v. Railroad, 114 Mo.App. 10; Gass v. Railroad, 57 Mo.App. 574. (4) From whatever point of view this case may be considered it was clearly error to excuse defendant for its total disregard of statutory requirements and its gross negligence, and declare as a matter of law, notwithstanding defendant's disregard of statute and inexcusable negligence, that the negligence of this child deprived plaintiffs of the submission of this case to the jury. This is peculiarly a case for the jury. Cases supra.
J. L. Minnis and Sebree, Conrad & Wendorff for respondent.
(1) Defendant was not guilty of any negligence. The whistle was blown at the whistling post eighty rods from the crossing and the bell kept ringing from within five or six hundred feet of the crossing until the crossing was reached. The engineer swears positively that the whistle was blown at the whistling post eighty yards from the crossing where the accident happened and the bell was kept ringing from a point five or six hundred feet from the crossing until the crossing was reached. All the other witnesses testified that they did not hear the whistle nor the bell. The uncontradicted positive testimony of the engineer, with only the negative character of testimony of all the other witnesses, must be regarded as true. Henze v. Railroad, 71 Mo. 638; Sullivan v. Railroad, 72 Mo. 195; McGrath v. Railroad, 197 Mo. 105; Isaacs v. Skrainka, 95 Mo. 523. (2) Deceased's negligence in not looking and listening for the train before attempting to cross the railroad track contributed to his death and precludes plaintiffs' recovery in this case. Walker v. Railroad, 193 Mo. 453; Porter v. Railroad, 199 Mo. 82; Mockowik v. Railroad, 196 Mo. 550; Sanguinette v. Railroad, 196 Mo. 446; Green v. Railroad, 192 Mo. 131; Schmidt v. Railroad, 191 Mo. 215; Deschner v. Railroad, 200 Mo. 325. (3) Deceased's age -- he was thirteen years one and one-half months old -- did not excuse him for his negligence in failing to look and listen for the approaching train before attempting to cross the railroad track. The evidence clearly shows without dispute that he thoroughly understood the danger of trains and was usually very cautious about them. Deschner v. Railroad, 200 Mo. 325; Walker v. Railroad, 193 Mo. 481; Payne v. Railroad, 136 Mo. 593; Graney v. Railroad, 157 Mo. 678. (4) If deceased had not the capacity to appreciate the danger of attempting to cross a railroad track without first looking for a train, plaintiffs knew that fact, and were guilty of negligence in sending deceased across the track at train time, and therefore cannot recover in this case. Wiese v. Remme, 140 Mo. 299; Koons v. Railroad, 65 Mo. 592. (5) Even if defendant had been guilty of negligence, yet since deceased's negligence contributed to the injury, plaintiffs cannot recover. Payne v. Railroad, 136 Mo. 593; Porter v. Railroad, 199 Mo. 97; Green v. Railroad, 192 Mo. 131; Clancy v. Railroad, 192 Mo. 615.
Plaintiffs, the parents of Oscar McGee, a minor killed by one of defendant's passenger engines at a railroad crossing, known as Long's crossing, in Daviess county, grounding a cause of action on the negligence of defendant's train servants, sue to recover the statutory penalty of $ 5,000.
At the close of plaintiffs' case in chief, the trial court gave defendant an instruction in the nature of a demurrer to the evidence. Thereat, they took a voluntary nonsuit with leave. Failing to get it set aside on motion, they appeal.
The petition counts on the following specifications of negligence, viz.: (1) A negligent failure to give the statutory crossing signals of bell or whistle. (2) Running its train at a reckless and dangerous rate of speed, environment considered. (3) A negligent failure to avoid the death of Oscar after defendant's servants running the locomotive and train saw, or by the exercise of ordinary care and diligence could have seen, him in peril in time to have saved his life.
The answer is a general denial coupled with two allegations of negligence, viz.: One, an averment of Oscar's contributory negligence in attempting to cross defendant's railroad track without looking or listening for the approach of a train -- the other, the negligence of plaintiffs in permitting Oscar to so cross defendant's track.
The reply was conventional.
The case on the facts is this:
Oscar McGee was the rise of thirteen years in age. Plaintiffs' counsel submit the case to us on the theory that he was a bright boy for that age and endowed with all his natural senses. He was shown to be familiar with railroad tracks and the running of trains. His father on cross-examination was asked: His answer was: "Well, I did not give him any particular caution, for I never knowed him to ever fall or play or stay around here, because he was very careful and scary of a train; it was hard to get him to go about a train something that he never did to my knowledge and I never thought to caution him." His mother on cross-examination was asked: Her answer was: "I did not give him none for he did not need it; he was afraid of a train; he never bothered with the train, and he never went about them; . . . . he was the most cautionate boy about a train, I reckon, that ever was, pretty near it,...
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