24 S.W. 472 (Mo. 1893), Schmitz v. The St. Louis, Iron Mountain and Southern Railway Company

Citation:24 S.W. 472, 119 Mo. 256
Opinion Judge:Burgess, J.
Party Name:Schmitz v. The St. Louis, Iron Mountain and Southern Railway Company, Appellant
Attorney:H. S. Priest and H. G. Herbel for appellant. S. N. Taylor for respondent.
Judge Panel:Burgess, J. Sherwood, J., dissents, and Barclay, J., absent.
Case Date:December 23, 1893
Court:Supreme Court of Missouri
 
FREE EXCERPT

Page 472

24 S.W. 472 (Mo. 1893)

119 Mo. 256

Schmitz

v.

The St. Louis, Iron Mountain and Southern Railway Company, Appellant

Supreme Court of Missouri

December 23, 1893

Appeal from Warren Circuit Court. -- Hon. W. W. Edwards, Judge.

Affirmed.

H. S. Priest and H. G. Herbel for appellant.

(1) The court erred in admitting the testimony of plaintiff and his witness, Otten, regarding the action of other persons in crossing the train in question before his injury, and of said witness, Otten, regarding the absence of a flagman at the crossing. (2) The court erred in excluding the deposition of Frank Furley offered by defendant, which had been taken by plaintiff and filed in this case. Schmick v. Noel, 64 Texas, 406. (3) The court erred in overruling defendant's demurrers to the evidence interposed at the close of plaintiff's case and of the whole case. Railroad v. Plaskett, 26 P. 401; Corcoran v. Railroad, 105 Mo. 399; Ruschenburg v. Railroad, 19 S.W. 217; Hudson v. Railroad, 101 Mo. 31; Stilson v. Railroad, 67 Mo. 671; Dahlstrom v. Railroad, 96 Mo. 102; Andrews v. Railroad, 45 Am. & Eng. R. R. Cases, 171; Berg v. Railroad, 48 N.W. 691; Lewis v. Railroad, 38 Md. 588; Railroad v. Pinchin, 31 Am. & Eng. R. R. Cases, 592; Sherman v. Railroad, 72 Mo. 66; Rogers v. Lees, 21 A. 399; Waldheier v. Railroad, 71 Mo. 514; Kelly v. Barber Co., 20 S.W. 271; Dlauhi v. Railroad, 105 Mo. 65. (4) The court erred in refusing the instructions asked by defendant. Stewart v. City, 79 Mo. 614; Corcoran v. Railroad, 105 Mo. 405; Ruschenburg v. Railroad, 19 S.W. 217. (5) The court erred in modifying defendant's first, third and sixth refused instructions, and in giving them to the jury as modified, of its own motion. (6) The court erred in giving the instructions asked by plaintiff. Stephens v. Railroad, 86 Mo. 227; O'Brien v. Loomis, 43 Mo.App. 95; Mateer v. Railroad, 105 Mo. 354; Gurley v. Railroad, 95 Mo. 450; Zimmerman v. Railroad, 74 Mo. 91; Railroad v. Pearcy, 27 N.E. 482; Mellor v. Railroad, 105 Mo. 462; Wilburn v. Railroad, 36 Mo.App. 215. (7) The court erred in overruling defendant's motion for a new trial because of the errors in instructions and the excessiveness of the verdict. Sharp v. Railroad, 20 S.W. 93; Gurley v. Railroad, 104 Mo. 233; Parson's Railroad v. Montgomery, 26 P. 405.

S. N. Taylor for respondent.

(1) The court did not err in permitting plaintiff to prove that others had passed between the cars before he crossed. Fiedler v. Railroad, 107 Mo. 645; Baker v. Railroad, 98 Mo. 50; Berger v. Railroad, 112 Mo. 247. (2) The court did not err in refusing to allow defendant to read the deposition of Frank Furley, because he was present in court at the time the same was offered, ready to be examined, having been duly subpoenaed in the case. Revised Statutes, 4462; Schmitz v. Railroad, 46 Mo.App. 392; Priest v. Way, 87 Mo. 28. (3) The court did not err in overruling defendant's demurrers to the evidence. On the case made by the evidence, according to the great weight of authority, it was properly submitted to the jury. Schmidt v. Railroad, 46 Mo.App. 380; Hilz v. Railroad, 101 Mo. 53; Wilkins v. Railroad, 101 Mo. 93; Gurley v. Railroad, 104 Mo. 227; Mateer v. Railroad, 107 Mo. 651; Grant v. Railroad, 2 MacArthur, 277; Ranch v. Lloyd, 31 Pa. St. 358; Fitzpatrick v. Railroad, 35 Md. 32; McMahon v. Railroad, 39 Md. 348; Shearm. & Redf. on Neg. [4 Ed.], secs. 92, 479. (4) Moreover, defendant, by offering evidence after its demurrer was overruled, thereby waived it, and can not now insist that the court erred, even if in fact it did, which I deny. Bowen v. Railroad, 95 Mo. 275; Kelly v. Railroad, 95 Mo. 279; McPherson v. Railroad, 97 Mo. 253; Hilz v. Railroad, 101 Mo. 36; (5) Passing through the gap between the cars in a public street, under the circumstances shown in this case, was not negligence per se. Wilkins v. Railroad, 101 Mo. 93; Grant v. Railroad, 2 MacArthur, 277; Ranch v. Lloyd, 31 Pa. St. 358; Fitzpatrick v. Railroad, 35 Md. 32; McMahon v. Railroad, 39 Md. 438; Shearm. & Redf. on Neg. [4 Ed.], secs, 92, 479; Schmidt v. Railroad, 46 Mo.App. 380. (6) Where a boy uses the care reasonably to be expected from one of his years and capacity, he is not guilty of contributory negligence, and whether or not he did use such care is a question for the jury. Schmitz v. Railroad, 46 Mo.App. 380; Kempinger v. Railroad, 3 Mo.App. 581; Boland v. Railroad, 36 Mo. 484; O'Flaherty v. Railroad, 45 Mo. 71; Koons v. Railroad, 65 Mo. 592; Donoho v. Iron Works, 75 Mo 401; Saare v. Railroad, 20 Mo.App. 336; Hudson v. Railroad, 101 Mo. 33; Williams v. Railroad, 96 Mo. 275; Dowling v. Allen, 102 Mo. 213; Railroad v. Gladman, 15 Wall. 401; Railroad v. Stout, 17 Wall. 657; Railroad v. Fitzsimmons, 22 Kan. 686; Hydraulic Co. v. Orr, 83 Pa. St. 322. (7) Active diligence was due from defendant to use reasonable care and precaution not to injure children on the street, though climbing over its disconnected draw bars. Defendant's instructions refused to state the reverse, and were properly refused. Wilkins v. Railroad, 101 Mo. 93; Hilz v Railroad, 101 Mo. 53; Frick v. Railroad, 75 Mo. 595; S. C., 5 Mo.App. 439; Gurley v. Railroad, 104 Mo. 227; Harlan v. Railroad, 65 Mo. 24; Dunkman v. Railroad, 95 Mo. 232; Scoville v. Railroad, 81 Mo. 440; Kelly v. Railroad, 75 Mo. 140; Welsh v. Railroad, 81 Mo. 466; Brown v. Railroad, 50 Mo. 561; Boland v. Railroad, 36 Mo. 490. (8) The plaintiff exhibited his crushed foot and ankle to the jury without objection on part of the defendant. It was proper he should do so, because their condition resulting from the injuries, on inspection, were obvious to the jury. It gave the jury a better idea of the terrible injury inflicted upon the plaintiff than words could. Commonwealth v. Brown, 14 Gray, 419; Martin v. Fairbanks, 11 Pick. 367; Commonwealth v. Burk, 5 Cush. 427; Commonwealth v. Benton, 12 Allen, 182; 1 Wharton on Evidence, 345; Mulhaldo v. Railroad, 30 N.Y. 370; Scroeder v. Railroad, 47 Iowa 375; Brown v. Swinford, 44 Wis. 282; Car Co. v. Parker, 100 Ind. 181; Railroad v. Pottsfer, 141 U.S. 250; Owens v. Railroad, 95 Mo. 177. (9) The record shows that justice was done in the finding of the jury and the rendition of the judgment. It is a well settled doctrine in this state, when, from the whole case it appears that justice has been done, though errors were committed which did not materially affect the merits, the court will not disturb the verdict. Walter v. Cathcart, 18 Mo. 256; Smith v. Culligan, 74 Mo. 388; Drain v. Railroad, 86 Mo. 582; Mauerman v. Railroad, 41 Mo. 358. Moreover, the statutes make the above rule imperative upon this court. Revised Statutes, 2100, 2302, 2303.

Burgess, J. Sherwood, J., dissents, and Barclay, J., absent.

OPINION

[119 Mo. 260] In Banc

Burgess, J.

This is a suit by William Schmitz, a minor nine years old, by his next friend, Anton Schmitz, to recover damages for personal injuries caused by the negligence of the defendant in operating its cars upon Lesperance street crossing in the city of St. Louis. It was brought in the circuit court of the city of St. Louis, and thereafter taken by change of venue to Warren county circuit court. It was tried before a jury, and resulted in a verdict and judgment of $ 5,708 for plaintiff.

[119 Mo. 261] The petition, or that part of it which is before this court for consideration, is as follows:

"Now comes the plaintiff and avers that he is a minor, under the age of ten years, and that Anton Schmitz was duly appointed as his next friend to bring this suit, before said suit was brought. That defendant is, and at the time hereinafter mentioned was, a corporation duly organized under the law of the state of Missouri, and engaged in the operation of a railroad, a part of which is in the city of St. Louis.

"Plaintiff further states, that on the twenty-fourth day of August, 1890, and in the daytime, he was going east on a public street in said city known as Lesperance street, where said street is crossed by defendant's railroad in said city; that at said time and place a train of flat cars was standing across said street, which impeded his progress on said street, which train stood there for several minutes and not in motion; the plaintiff, seeing said train standing perfectly still for several minutes, and there being no sign or indication that it was going to move, and seeing many adults and others crossing over the same in said street-between the flat cars-without let or hindrance, or notice not to do so, he undertook to cross over between two such flat cars, in said street, where the other persons upon said street had crossed immediately before him; that he stopped, listened, and looked, before so crossing, and the bell of the locomotive was not rung, the whistle was not sounded, nor was any audible or visible signal given by defendants

Page 473

or its employees to notify plaintiff that said train was about to be thrust backwards, nor was any brakeman in sight of plaintiff, nor was any brakeman on the rear of said train, nor was there any gate or bar across said street where it was crossed by said railroad, and without any notice or warning whatever given on the part of the defendant, the said defendant, violently, [119 Mo. 262] suddenly, carelessly and negligently caused the engine, propelled by steam power, to jam the cars of said train together, thereby breaking and crushing the bones of plaintiff's foot and ankle between the bumpers of two of said cars while he was in the act of crossing as aforesaid, and in consequence he was injured and maimed for life, and caused to suffer great physical and mental pain and agony.

"Plaintiff further states, that considering his age and intelligence, he was at the time exercising that degree of care and diligence which could be...

To continue reading

FREE SIGN UP