Czezewzka v. Benton-Bellefontaine Ry. Co.

• Decision Date: 24 March 1894
• Citation: 25 S.W. 911,121 Mo. 201
• Parties: CZEZEWZKA v. BENTON-BELLEFONTAINE RY. CO.
• Court: Missouri Supreme Court

25 S.W. 911

121 Mo. 201

CZEZEWZKA v. BENTON-BELLEFONTAINE RY. CO.

Supreme Court of Missouri, Division No. 1.

March 24, 1894.

STREET RAILWAYS — INJURY TO CHILD — EVIDENCE — NEGLIGENCE OF PARENT — PLEADING.

1. In an action against a street-railway company for causing the death of a child, where the complaint states that deceased was under two years old, it is unnecessary to allege that he was unmarried.

2. Rulings of the lower court, not excepted to, will not be considered on appeal.

3. In an action for personal injuries, against a street-railway company, a witness with experience as a street-car driver, and familiar with the manner in which such cars should be driven, may testify as to the position a driver should occupy when operating a car.

4. The extent to which the temper and disposition of a witness may be shown on cross-examination is largely within the discretion of the trial court.

5. In an action against a street-railway company for causing the death of a child, it appeared that he was run over by a car, on a bright day, at a place where the driver could see everything in front, and that when the car was within 30 feet of him the driver's attention was called to the child; that the proper way to operate such a car was to have the lines in one hand, and brake in the other, but the driver was holding the lines, and looking behind him, talking to another person. The car could be stopped in 6 feet, but ran over the child, and was first stopped over 60 feet from the place where the driver's attention was called to the child. Held, motion for nonsuit was properly denied.

6. In an action against a street-railway company for causing the death of a child, by being run over by a car, if such injury could have been avoided by the exercise of ordinary care by the driver, the plaintiff can recover, although she was guilty of negligence, in permitting him to escape upon the street.

Appeal from circuit court, Warren county; W. W. Edwards, Judge.

Action by Eva Czezewzka against Benton-Bellefontaine Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Nathan Frank and Chas. W. Bates, for appellant. Sterling P. Bond, for respondent.

BRACE, J.

This is an action for damages, originally brought in the circuit court of the city St. Louis, by John Czezewzka and his wife, Eva, against the defendant, for the death of their infant son. The case was taken by change of venue to the Warren county circuit court, where it was tried. Before the trial the husband died. The plaintiff, Eva, on the trial, obtained a judgment for $5,000, and the defendant appealed.

The cause of action, as set out in the petition, is as follows: "That on or about the 5th day of July, 1889, Gustavus Czezewzka, an infant son of said plaintiffs, under the age of two years, whilst upon North Fourteenth street, a public thoroughfare in the city of St. Louis, was run over and killed by the defendant's street car, hauled by a team of mules attached thereto, on said Fourteenth street, by reason of the carelessness and negligence, and disregard of duty, on the part of the servant of said defendant, in managing and operating said car, and in failing to keep a proper lookout for persons approaching and on defendant's street-car track. Plaintiffs further aver that at the time said Gustavus Czezewzka was run over and killed the defendant had a driver on the front platform of said car, driving said team attached thereto, and that the driver saw, or in the exercise of reasonable care and diligence in keeping a lookout for persons on foot, either on the track, or moving towards it, could and would have seen, the plaintiff's son in time to have stopped said car so as to have prevented said injuries. Nevertheless, said driver carelessly and negligently failed to observe said infant in said perilous position, or else carelessly and negligently failed to stop said car after observing him, and before said accident, as it was the duty of the driver to do, and as he might, by the exercise of reasonable care and diligence, have done, and that such carelessness and negligence on the part of said driver directly contributed to said death." And the plaintiffs further aver that at the time of said injuries and death the agent and servant of the defendant in charge of said car, saw, or by the exercise of reasonable care and diligence would have seen, said infant in time to have stopped said car, and prevented said death, yet he failed and neglected so to do, which failure and negligence on his part directly contributed to cause said death. The answer was a general denial, and a plea of contributory negligence on the part of plaintiffs, in permitting the deceased to go unattended on or near the defendant's track, upon which issue was joined by reply.

The facts, as they appear in the evidence in support of plaintiffs' case, are that on the morning of July 5, 1889, the father of the deceased infant was not at home, having gone to his work; that the three older children had gone to school, and the three younger children were asleep in one room. While their mother was in the kitchen, preparing her husband's breakfast, the infant son, who was killed, awoke, and escaped into the street. When the child got out, the mother did not know. They had been married about 13 years. Were laboring people. The husband earned $30 per month, upon which he and his family subsisted. They were not able to hire a nurse for their infant. Other people lived in the same yard, and whenever the mother saw the gate open, she closed it. The mother was first attracted to the street by a noise in the street, and there, for the first time, discovered that her son had escaped into the street, and was killed by defendant's street car. The day was bright, the street was open, and the driver could have seen everything in front of him. The baby was seen from 8 to 30 feet in front of the mules, playing on the car track. The driver was hallooed at, to "look out for the baby," when it was some 30 feet in front of the mules, playing on the track; and there is testimony to the effect that he hallooed several times himself. He was talking to a man on the front rail of the dashboard, and looking back. He had his lines in his hand, but his hand was not on the brake. It was shown that the way to manage and operate a car was to have the lines in one hand, and the brake in the other. The car was going at the usual gait, and the car could have been stopped within from 2½ to 6 feet. The wheels of the car passed over the child before it was stopped, and the child was killed. The car was about 12 feet long, and one witness testified that it ran from 60 to 65 feet from where he first heard the hallooing until it was stopped.

The defendant's case is most strongly presented in the following evidence of Booth, the driver, given in its behalf: "Was driver on the Bellefontaine car that ran over the child on July 5th. It was about 7:17, on North Fourteenth street, between Angelrodt and Buchanan. The first I saw of it, it was four feet from the track, and the child was moving when I seen it. And I made some exclamation of warning, and started to put on my brake, and immediately stopped the car; and the mules made a sort of surge, and if anything hit the child, and knocked it down, it was the trace. I could not say, exactly, when the child fell. It was right at the dashboard. Was right almost under me when it struck the rail. I threw on my brake as quick as I could, and stopped the car. I saw the child no more after it fell to the ground. The child made no stop when I gave the exclamation. The mules made a sort of surge, and I commenced putting on my brake immediately, — just the instant I saw the child. It was all done instantly. It was on the west side of the car track, and it was angling — sort of — towards me. I made an utterance of some kind. The child ran into the mule, right at its hind foot. It was near the middle of the block between Angelrodt and Buchanan. I was not talking to anybody at the time. I was looking directly ahead of me when I saw the child. My hand was on the brake from the moment I saw the child coming in the direction of the car to the time it reached there. I could not stop the car in time to save the child."

At the close of the evidence the court refused to give for defendant one instruction in the nature of a demurrer to the evidence, and submitted the case to the jury on the following instructions:

Plaintiff's instructions: (1) "The court instructs the jury that if you believe from the evidence produced before you that on or about the 5th day of July, 1889, the defendant corporation was operating a street railway running for a part of its course along North Fourteenth street, in the city of St. Louis, and at the time aforesaid the driver in charge of one of defendant's cars, and then in the employment of defendant as such driver, was guilty of negligence or carelessness in managing and operating said car along said street, and that by reason of said negligence or careless management and operation, and as a direct consequence thereof, such car ran over and injured Gustavus Czezewzka, the...