2 S.W. 315 (Mo. 1886), Muehlhausen v. St. Louis Railroad Co.

Citation:2 S.W. 315, 91 Mo. 332
Opinion Judge:Norton, C. J.
Party Name:Muehlhausen et al. v. The St. Louis Railroad Company, Appellant
Attorney:S. P. Galt for appellant. G. A. Finkelnburg, Leo Rassieur and Dexter Tiffany for respondents.
Case Date:December 06, 1886
Court:Supreme Court of Missouri
 
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Page 315

2 S.W. 315 (Mo. 1886)

91 Mo. 332

Muehlhausen et al.

v.

The St. Louis Railroad Company, Appellant

Supreme Court of Missouri

December 6, 1886

Page 316

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Page 317

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Page 318

Appeal from St. Louis Court of Appeals.

The court, at plaintiff's request, gave the following instructions:

"1. The court instructs the jury that if they believe, from the evidence, that, under the instruction defining what makes a person a passenger, the deceased was a passenger on defendant's car, and that the driver of the defendant, while in charge of said car, was guilty of negligence, carelessness, or want of prudence or skill in managing or conducting said car, and thereby the deceased was jolted or thrown from said car, or was thereby without hindrance enabled to attempt to alight from said car from the front platform thereof, and in consequence thereof injured and killed; and if the jury further find that the deceased was then and there exercising such ordinary care and prudence as a passenger as could reasonably be expected from a child of his age, then the defendant is liable, and the jury will find for the plaintiffs, providing they also find, from the evidence, that the deceased was an unmarried minor at the time of his death, and that the plaintiffs are his parents."

"2. Although the jury may find that the deceased, Eddy Muehlhausen, had not paid any fare at the time of the injury, yet if the jury further find, from the evidence, that the deceased was on defendant's car with the knowledge and permission of defendant's employe in charge of said car, then the deceased was a passenger, and entitled to the same care and protection as if he had paid his fare."

"3. The jury are instructed that the care and foresight required of a child is not the same as that which is required of a grown person, and that in the case of a child, it is required to act with the care and prudence which can reasonably be expected of its capacity and age; and when it manifests as much care and prudence as can reasonably be expected from it, the child is not guilty of negligence. And if the jury find, from the evidence, that deceased was of the age of eight years, and did not possess the discretion of an adult or grown person, at the time of the injury, then the jury should consider these facts in determining whether or not plaintiffs' child, Eddy, was guilty of negligence, at the time of said injury, that contributed to cause said injury."

"4. The jury are instructed that it is by law made the duty of defendant to furnish its cars with such adjustable gates or guards as shall effectually prevent passengers from getting on or off any car by the front platform, while the car is in motion, and if the jury find, from the evidence, that the driver of defendant's car neglected to keep a gate or guard across the east side of the front platform of car number ten, so as to prevent passengers from getting on or off said front platform, that, by reason thereof deceased came to his death, and that deceased was not guilty of any want of ordinary care and prudence in his conduct on said occasion, such as could reasonably be expected from a boy of his age, then the defendant is liable in this suit."

"5. Although the deceased child may have been guilty of misconduct, or failed to exercise ordinary care and prudence while on defendant's car, which may have remotely contributed to its death, yet if the employe of the defendant was guilty of negligence in the management of car number ten, which negligence was the immediate cause of the death, and with the exercise of prudence and care by said employe, after the danger was impending, said injury and death might have been prevented, the defendant is liable in this suit."

"6. If the jury believe, from the evidence, that plaintiffs were, at the time of the injury and death of Eddy Muehlhausen, the parents of said Eddy, and the deceased was an unmarried minor at that time, and that said Eddy died from injuries resulting from or occasioned by the negligence or carelessness of defendant's agent, servant, or employe, whilst running, conducting, or managing one of their cars, and without negligence on the part of the deceased or these plaintiffs, directly contributing thereto, as explained in other instructions, then the defendant is liable in the action, and the jury should find for the plaintiffs."

"7. If the jury find for the plaintiffs, they will assess the damages at five thousand dollars, that being the amount fixed by law."

The court, at the defendant's request, gave the following instructions:

"3. The court instructs the jury that the mere fact that Eddie Muehlhausen was on the car did not constitute or make him a passenger thereon."

"8. The court instructs the jury that the gate required by law for the defendant to keep on its front platform was an adjustable gate -- that is, a gate that could be opened and shut, and if the jury believe from the evidence, that at the time Eddie Muehlhausen was injured by the car, the defendant used, on the front platform of the car, a gate which, when closed, would effectually keep persons from getting off the platform, unless it was opened, or they got over it, then the court instructs the jury that they cannot infer any negligence or breach of duty, on the part of the defendant, in regard to the character of the gate, or its adjustments, though the jury may believe that it could be opened easily, and a small boy could open it."

"11. The court instructs the jury that the burden of proving the facts in the case necessary, under the instructions of the court, to make the defendant liable, is upon the plaintiffs, and if the jury believe, after considering all the testimony and witnesses, that the plaintiffs have not established said facts, by a preponderance of testimony, that is, by testimony entitled to the greater weight and credence, then the jury will find for the defendant. And if the jury believe that the plaintiffs have so established said facts, and the jury also believe, from the evidence, that Eddie Muehlhausen got, or jumped, off the car, while in motion, and that his so doing was reckless and negligent, and directly contributed to his injuries received, then the jury will find for the defendant."

"12. The court instructs the jury that if they have any sympathy for, or prejudice against, either of the parties to this suit, they must not permit such sympathy or prejudice to affect their consideration of the case, but they must decide the same...

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