Schmitz v. The St. Louis, Iron Mountain and Southern Railway Company
Decision Date | 23 December 1893 |
Citation | 24 S.W. 472,119 Mo. 256 |
Parties | Schmitz v. The St. Louis, Iron Mountain and Southern Railway Company, Appellant |
Court | Missouri Supreme Court |
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.
OPINION
In Banc
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.
The petition, or that part of it which is before this court for consideration, is as follows:
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