12 S.W. 652 (Mo. 1889), Winters v. Kansas City Cable Railway Co.

Citation:12 S.W. 652, 99 Mo. 509
Opinion Judge:Black, J.
Party Name:Winters, by his next friend, v. The Kansas City Cable Railway Company, Appellant
Attorney:Johnson & Lucas for appellant. Jewell & Thompson for respondent.
Case Date:December 21, 1889
Court:Supreme Court of Missouri
 
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Page 652

12 S.W. 652 (Mo. 1889)

99 Mo. 509

Winters, by his next friend,

v.

The Kansas City Cable Railway Company, Appellant

Supreme Court of Missouri

December 21, 1889

Appeal from Jackson Circuit Court. -- Hon. T. A. Gill, Judge.

Affirmed.

Johnson & Lucas for appellant.

(1) Defendant's demurrer ought to have been sustained. (a) There is no evidence that the servants of defendant saw or could have seen plaintiff in time to stop train and avoid injury. Wood's Railway Law, pp. 1275, 1276, 1277 and 1278; Jackson v. Hardin, 83 Mo. 186; Landis v. Hamilton, 77 Mo. 554; Powell v. Railroad, 76 Mo. 84; Boland v. Railroad, 36 Mo. 484. (b) There was no evidence offered that defendant was operating the road at the time of the accident. Gilbert v. Railroad, 23 Mo.App. 66. (2) Plaintiff's first instruction should have been refused. (a) It assumes that the defendant was operating the road, and that the car which ran over the plaintiff was defendant's car. Stoher v. Railroad, 91 Mo. 517 and 518; Raysdon v. Trumbo, 52 Mo. 35; Birtwhistle v. Woodward, 95 Mo. 113; Peck v. Ritchey, 66 Mo. 121; Wilkerson v. Thompson, 82 Mo. 328. (b) There was no evidence that the gripman saw, or by the exercise of proper care could have seen, the plaintiff. Bowen v. Railroad, 75 Mo. 426; Harty v. Railroad, 95 Mo. 368. The second instruction given is erroneous. It ignores the question of safety to passengers on the car. Young v. Railroad, 79 Mo. 336; Grant v. Railroad, 25 Mo.App. 231. And there was no evidence that defendant's servants were not in readiness to stop the train on discovering any person in a dangerous situation. Harty v. Railroad, 95 Mo. 368. There was no evidence that defendant's servants in charge of its trains at that place did not keep a lookout to see if persons were passing, etc. Railroad v. Herrite, 4 Am. and Eng. Ry. Cases, 548. Plaintiff's third instruction ought not to have been given. The negligence of the parent or guardian will be imputed to the child. Hartfield v. Roher, 21 Wend. [N. Y.] 615; Mangum v. Railroad, 38 N.Y. 455; Cadmus v. St. Louis Bridge Co., 15 Mo.App. 86; Stillson v. Railroad, 67 Mo. 671. And for that reason defendant's second instruction ought to have been given. Cases above cited. Plaintiff's fourth instruction assumes that defendant was operating the road; that it was defendant's employes that were in charge of the cars. This was a disputed fact, and should have been submitted to the jury. Glass v. Gelvin, 80 Mo. 297; Grier v. Packer, 85 Mo. 107; Raysdon v. Trumbo, 52 Mo. 35; Maxwell v. Railroad, 85 Mo. 96; Dowling v. Allen & Co., 88 Mo. 293. It assumes that plaintiff was injured by the car of defendant. This was affirmed by the petition and denied by the answer, and was an issuable fact. It refers the jury to the pleadings to determine the issues in the case. McGinniss v. Railroad, 21 Mo.App. 399. Plaintiff's fifth instruction ought to have been refused, not given. It is too general in its character, and tells the jury that plaintiff can recover if through the carelessness or negligence of defendant's employes it inflicted upon the plaintiff the injury mentioned in the petition. It does not limit the recovery to the negligent act complained of. Gurley v. Railroad, 93 Mo. 450; Glass v. Gelvin, supra; Waddingham v. Hulett, 92 Mo. 528. The court should have stated the issues, and not referred the jury to the pleadings to ascertain them. Biegan v. Railroad, 63 Iowa 464; Fitzgerald v. McCarty, 55 Iowa 702. Defendant's sixth instruction ought to have been given. Under the pleadings and evidence the plaintiff could not recover. (a) The allegation in the petition is, that defendant then and there carelessly and negligently ran one of its said cars upon and over plaintiff. There is no evidence of carelessness or negligence on the part of defendant. (b) There is no evidence that defendant ran one of its cars upon and over plaintiff. (c) The petition does not state facts sufficient to constitute a cause of action, and defendant's instruction ought to have been given. Gurley v. Railroad, 93 Mo. 450. (3) Defendant's motion for a new trial ought to have been sustained. The verdict is absolutely without evidence to support it. Spooner v. Railroad, 23 Mo.App. 403; Taylor v. Fox, 16 Mo.App. 527.

Jewell & Thompson for respondent.

(1) The defendant should have offered no testimony, if he wished to stand upon his demurrer. Kelly v. Railroad, 75 Mo. 141; Cadmus v. Co., 15 Mo.App. 94. In passing upon this instruction every inference must be in favor of plaintiff. Buesching v. Gaslight Co., 73 Mo. 219; Frick v. Railroad, 75 Mo. 601. (2) Appellant's instructions numbers 2, 3 and 4 assume the defendant was operating the road. So does defendant's answer. Barr v. Armstrong, 57 Mo. 589. The second instruction given does not ignore the safety of passengers. It only required the cars to be stopped as quickly as the same could reasonably be done by the exercise of ordinary care. If cars were stopped regardless of consequences to passengers, it would not be reasonably done. (3) Neither giving plaintiff's third instruction nor refusing defendant's second instruction was erroneous. We maintain the doctrine of imputed negligence in this state to be that mere acts of omission on the part of the parent, such as permitting the child to go upon the street alone or improperly attended is no defense to an action by the child for injuries negligently inflicted...

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