Senn v. Southern Ry. Co.

Citation108 Mo. 142,18 S.W. 1007
PartiesSENN et ux. v. SOUTHERN RY. CO.
Decision Date02 February 1892
CourtUnited States State Supreme Court of Missouri

1. In an action for the death of a child, who was run over by defendant's street-car, it appeared that deceased, with a companion, was driving a cow from across the street. Two or three witnesses testified that one boy, with the cow, had crossed the track; that deceased, in crossing, was tripped by one of the mules, and thrown on the track, and that the front wheel of the car passed over his leg. The driver testified that he did not see either of the boys until after the accident. There was evidence that the attention of the driver was, at the time, directed to some person standing on the side of the street. Held, that the question of defendant's negligence was for the jury.

2. The child's father did not see the accident, but reached the place two or three minutes later. He was asked on the trial what he said to the driver, and replied: "I said to him that `it was your careless driving,' and took the boy and carried him into the house." The next question was: "What then occurred? Answer. I sent for the doctor." Held, that the evidence failed to show that the driver made no denial of the charge.

3. The declaration of the father was not part of the res gestæ, and was inadmissible.

4. The testimony showed that the car was drawn by two mules, and was occupied by one passenger, and it did not appear that the track was dry. Plaintiffs called a witness who had had experience in driving a "bob-tail" car, and asked him the following question: "If the car is going at a slow trot, down a grade of two or three feet to the block, with a few passengers in the car, and the track is dry, and the driver is standing at his post, and a boy is crossing the track in front of the mules, how far will the car go before the driver can stop it?" Held, that the question did not sufficiently state the facts to make the opinion of the witness admissible.

5. Though defendant admitted the accident and death of the child, it was proper for the court to permit the clothes worn by the boy at the time of the accident to be exhibited to the jury, since the clothing showed the position in which the boy's leg was placed when run over, and it may have tended to prove whether he was thrown on the track by the mules, as contended by plaintiff, or was thrown down in an attempt to board the car, as was the theory of defendant.

Appeal from St. Louis circuit court.

Action by Christian Senn and wife against the Southern Railway Company for damages for the death of a minor son of plaintiffs, caused by the alleged negligence of a driver of one of defendant's horse-cars. Judgment for plaintiffs for $5,000. Defendant appeals. Reversed.

Lubke & Muench, for appellant. Dodge & Mulvihill, for respondents.

MACFARLANE, J.

This action was commenced for damages under section 2121, Rev. St. 1879, for the death of the minor son of plaintiffs, Christian Senn and wife, on account of alleged negligence of a driver of a street horse-car on defendant's road, in driving and managing the same. Plaintiffs obtained judgment for $5,000, and defendant appealed. Since the appeal, Mary Senn, the wife, has died, and the cause has been revived in the name of Charles Scudder, administrator. Defendant is a corporation owning and operating a street railway in the city of St. Louis. The negligence charged was a failure of the driver of a car to observe the requirement of an ordinance of the city as follows: "The conductor and driver of each car shall keep a vigilant watch for all vehicles and persons on foot, especially children, either on the track or moving towards it; and on the first appearance of danger to such persons or vehicles the car shall be stopped in the shortest time and space possible." It was charged, in substance, that Charles Senn, son of plaintiffs, between six and seven years of age, was driving his father's cow across the track of defendant's railway on north Broadway in the city of St. Louis, and the driver of one of defendant's horse-cars negligently failed to keep a vigilant watch for persons moving towards or upon the track, and negligently failed, on first appearance of danger to the son of plaintiffs, to stop the car, by reason of which their said son was knocked down and killed. It was also charged, in substance, that the death of plaintiffs' son was caused by the driver of the car negligently and carelessly driving the team attached to said car, and thereby allowing said team to run against and knock their son down, and the car to run over him. The answer admitted the incorporation of defendant; that plaintiffs were husband and wife; that Charles was their son, and that he was a minor; but denied all other allegations. It also charged contributory negligence on the part of deceased.

1. It is insisted that the evidence fails to make out a case of negligence which should have been submitted to the jury. It must be conceded that the facts immediately connected with the accident are not made clear and satisfactory by the evidence. Though there were three eye-witnesses to the injury, we only get the information, from their testimony, that the boy was tripped, or thrown down, by the mule on the east side. It is not shown how the deceased approached the track, except in a general way that he was driving a cow from the west to the east side of the street. It does not appear whether he stopped on the track, or tried to run across under the heads of the mules, or how he approached the track. On the question of contributory negligence it is not shown what the mental capacity and discretion of the boy was, or what his experience in being about street-cars had been, or what knowledge he had of their dangerous character. All those facts should have been shown as clearly as practicable, to have given either court or jury information sufficient to enable them to form an intelligent opinion of the proximate cause of the accident. Still we think the evidence tended to prove the allegations of negligence contained in the petition. The car, drawn by two mules, was running south on Broadway street. Deceased, with a companion, was driving a cow from the west across the street. Two or three witnesses testified that the cow and the other boy had crossed the track, — whether in front of or behind the car does not appear. Charlie, the deceased, in crossing, was tripped by the east mule, and thrown on the track, and the front wheel of the car passed over his leg. The driver testified that he saw neither of the boys until after the accident. There was also evidence which tended to prove that the attention of the driver was at the time directed to some person standing on the west side of the street. This railroad track occupied a public highway, which was open to the use of all persons, including...

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