Henry v. Grand Ave. Ry. Co.

• Decision Date: 31 January 1893
• Parties: HENRY et al. v. GRAND AVE. RY. CO.
• Court: Missouri Supreme Court

21 S.W. 214

113 Mo. 525

HENRY et al. v. GRAND AVE. RY. CO.

Supreme Court of Missouri, Division No. 2.

January 31, 1893.

NEGLIGENCE OF EMPLOYE — LIABILITY OF MASTER — DEGREE OF CARE — INSTRUCTIONS.

1. Plaintiff, while crossing a street, was injured, through the alleged negligence of an employe of defendant cable car company, who, it was claimed, so carelessly threw down a crowbar he had been using that it struck plaintiff. Plaintiff did not cross at the regular crossing, because it was muddy, but was passing diagonally over the street. Held, that evidence that it was very unusual for women to cross the street at this point was properly admitted.

2. Such evidence was not competent for the purpose of showing contributory negligence in plaintiff, for she had the right to cross the street at any point she saw fit, but was admissible to show that a greater degree of caution was required on her part than if she had crossed at the usual place.

3. What was due care and caution on the part of plaintiff was for the jury to determine, in the light of the dangers to be reasonably apprehended.

4. A refusal to give an instruction defining the issues to be passed on by the jury is not error, when the instructions, taken as a whole, present all the issues fairly.

5. An instruction that, "if the jury believe from the evidence that the injuries sustained by the plaintiff were merely the result of accident, then your verdict will be for defendant," is not erroneous on the ground that such use of the word "accident" eliminates the question of negligence.

6. An instruction that, though the jury may believe that defendant's servant failed to exercise ordinary care to prevent injury to persons crossing the street, yet if plaintiff failed to exercise ordinary care to avoid injury, and if she had not so failed the accident would not have happened, then she cannot recover, is objectionable, because it does not require the exercise of any prudence on the part of defendant's employe; still if, when taken in connection with the other instructions, it seems that the jury could not have been misled by it, such instruction is not reversible error.

Appeal from circuit court, Jackson county.

Action by T. J. Henry and husband against the Grand Avenue Railway Company to recover damages for personal injuries. From a judgment in favor of defendant, plaintiffs appeal. Affirmed.

Kagy & Bremermann, for appellants. Karnes, Holmes & Krauthoff, for respondent.

BURGESS, J.

Plaintiffs filed their petition in the circuit court of Jackson county, against defendant, claiming damages for personal injury to plaintiff T. J. Henry, who is the wife of her coplaintiff F. G. Henry. Defendant filed its answer, being a general denial, and alleging contributory negligence. Plaintiffs filed reply to the new matter set up in the answer. On the 16th day of June, 1890, the cause came on for trial before the court and a jury, and the plaintiffs, to sustain the issues on their part, introduced evidence tending to show the following state of facts: Mrs. Henry, the plaintiff, is a woman 62 years of age, and was at the time in robust health. On the 14th day of January, 1890, she undertook to cross Walnut street at the point where said street crosses Ninth street, both public streets in Kansas City. At this point defendant has a double-track cable railroad, which crosses at right angles the double-track cable railroad of the Kansas City Cable Company, the two roads forming a square at the intersection of the center line of both streets. At this point a greater number of pedestrians pass than at any other point in the city. There are three trains each way at intervals of one minute at this crossing. The street was wet and muddy, there having been a fall of snow and rain that day. The crosswalk was occupied by a large number of pedestrians, and plaintiff, seeing a dry place in the street, north of the crossing, undertook to pass over diagonally, to reach a point on the west side of Walnut street. Defendant had made an excavation in the street, being in the form of a rectangular parallelogram, to oil the pulleys on which the rope rested. This opening was covered with an iron plate, which fitted into an iron rim or frame, having sockets into which the plate slipped. The plate weighed about 75 pounds, and was about 3 feet square. At one end was a hole about an inch in diameter, in the shape of a half circle, made for the purpose of admitting an iron crowbar, with which to raise the plate. As plaintiff was in the act of crossing the street, one of defendant's employes, whom it denominated an "oiler," inserted a crowbar into this opening at the end of the plate for the purpose of raising it. The bar was five or six feet long, and was used as a prize. The plate was frozen to the frame, so that it required some effort to raise it. In doing so, she testified that he tripped her with the crowbar by throwing it between her feet, threw her violently to the ground, and that she sustained serious and permanent injuries from the fall; that he helped her up, apologized, and said that it was his fault. This man, — the "oiler," — whose name is Joseph Clinton, testified on behalf of defendant that the plaintiff tripped and fell herself; that she did not touch the crowbar; and that he had no connection whatever with her falling or injury. They were the only two witnesses who testified anything about what caused her to fall. The court, over plaintiffs' objection, permitted Mr. Holmes, the president of defendant, to testify that pedestrians usually cross the street in the neighborhood of Ninth and Walnut. The court permitted Robert Keith, a witness produced by the defendant, to give evidence as follows: "Question. State where was the customary place for pedestrians to cross Walnut street between Eighth and Ninth. Answer. At the corner of Eighth, and also at the corner of Ninth." Chief Hale, of the fire department, was permitted to testify as follows: "Q. What extent, if any, have you observed pedestrians crossing at other points? A. Well, about the only persons I have seen passing across the street would be perhaps men, when, in hitching our horses, they would run across to see the horses exercised. Q. State whether or not it is unusual for ordinary pedestrians to pass the crossing, and come down and cross over the street at other places. A. Yes; it an unusual thing; I hardly ever see any one cross in the middle of the street. Q. How about ladies crossing? A. I don't remember of seeing a lady cross in the middle of the block since I have been there. They generally go across the crossing." All of the foregoing evidence was objected to by plaintiffs at the time, for the reason that the fact that other persons did not cross, or were not seen to cross, could in no way affect the question of defendant's liability, and only tended to confuse and mislead the jury, and for the further reason that plaintiff had a right to cross the street at any point she saw fit.

The court gave instructions, at the plaintiffs' request, as follows: "(2) If you believe from the evidence that on the 14th day of January, 1890, the defendant was maintaining an opening covered with a trap door in Walnut street, north of its intersection with Ninth street, (public streets of Kansas City, Mo.,) for the purpose of oiling and repairing its machinery; that on said day the plaintiff T. J. Henry, while in the exercise of ordinary care and caution, was crossing said Walnut street at said point; that one of the servants and employes of defendant, while engaged in the line of his duty in and about oiling and repairing said machinery, so carelessly and negligently handled said trap door, or the bar used for removing the same, that he caused said plaintiff T. J. Henry to be tripped and lose her balance, so that she fell on and across one of the iron rails of defendant's track, by reason whereof she suffered an injury, — then the defendant is liable. The jury is instructed that, in determining whether or not plaintiff T. J. Henry was guilty of negligence...