31 S.W. 885 (Mo. 1895), Payne v. Chicago & Alton Railroad Company

Citation:31 S.W. 885, 129 Mo. 405
Opinion Judge:Macfarlane, J.
Party Name:Payne, by Next Friend, v. The Chicago & Alton Railroad Company, Appellant
Attorney:George Robertson for appellant. J. D. Shewalter, M. C. James and John S. Black-well for respondent.
Judge Panel:Macfarlane, J. Brace, C. J., and Barclay, Gantt, Burgess and Robinson, JJ., concur. Barclay, J., concurs on the ground stated in the fourth paragraph. Sherwood, J., is of the opinion that plaintiff was guilty of such contributory negligence as should reverse the judgment.
Case Date:June 25, 1895
Court:Supreme Court of Missouri
 
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Page 885

31 S.W. 885 (Mo. 1895)

129 Mo. 405

Payne, by Next Friend,

v.

The Chicago & Alton Railroad Company, Appellant

Supreme Court of Missouri, First Division

June 25, 1895

Appeal from Lafayette Circuit Court. -- Hon. Richard Field, Judge.

Reversed and remanded.

George Robertson for appellant.

(1) The plaintiff having failed to give any proof of the appointment and consent of the next friend to act as such and the point having been saved by a demurrer to the evidence, the judgment will have to be reversed. Porter v. Railroad, 60 Mo. 160; Sherman v. Railroad, 72 Mo. 62. (2) The court erred in refusing at the close of the evidence for the plaintiff, and at the close of all of the evidence to instruct a verdict for the defendant. According to the testimony of Claude Payne, placing the most favorable construction upon it for him, he stepped upon the track immediately in front, or against, a rapidly moving train, when he did see it, or by the exercise of any care at all could have seen it. Harlan v. Railroad, 64 Mo. 480; Harlan v. Railroad, 65 Mo. 22; Buesching v. Gaslight Company, 73 Mo. 219; Boyd v. Railroad, 105 Mo. 371; Karle v. Railroad, 55 Mo. 476; Maher v. Railroad, 64 Mo. 267; Zimmerman v. Railroad, 71 Mo. 477; Yarnell v. Railroad, 75 Mo. 583; Guenther v. Railroad, 108 Mo. 18; Prewitt v. Eddy, 115 Mo. 283. (3) Notwithstanding defendant's negligence may have contributed directly to produce the injury, the plaintiff's contributory negligence will preclude his recovery. Prewitt v. Eddy, supra; Dlauhi v. Railroad, 105 Mo. 645; Maher v. Railroad, 64 Mo. 267; 4 Am. and Eng. Encyclopedia of Law, pp. 17-19. (4) Plaintiff's instruction number 9 is in conflict with defendant's instruction number 8. The former submits to the jury the question of the negligent management of the train, while the latter tells the jury there is no such negligent management; also number 9 is error because no negligent management is charged in the petition, nor is any proved by any evidence in the case. (5) The verdict of the jury is contrary to instructions numbered 3, 4, 8, 12 and 13, given on the part of the defendant. Webber v. Railroad, 100 Mo. 194. (6) After the court gave defendant's instruction number 8, then the defendant was entitled to a verdict, or rather the facts declared to be true in that instruction entitled the defendant to a verdict. The evidence in the case established the fact that the plaintiff was negligent in going upon the track; then, before the defendant could be liable, notwithstanding defendant's negligence, it must be made to appear that the proximate cause of the injury was defendant's omission to use proper care to avoid the injury. Maher v. Railroad, 64 Mo. 276; Dunkman v. Railroad, 95 Mo. 232; Prewitt v. Eddy, supra; Strauss v. Railroad, 75 Mo. 185; Hurt v. Railroad, 75 Mo. 255; Webb's Pollock on Torts, 566, et seq. (7) Plaintiff's instruction number 7 is error. His definition of contributory negligence is wrong. 4 Am. and Eng. Encyclopedia of Law, pp. 18 and 19; Freer v. Cameron, 55 Am. Dec. 668 and note; Spencer v. Railroad, 54 Am. Rep. 269; Hurt v. Railroad, supra; Murry v. Railroad, 101 Mo. 236; Kelney v. Railroad, 101 Mo. 67. (8) This instruction is wholly at variance with the fact that contributory negligence is a negligent act of the plaintiff concurring with that of the defendant, which taken together, is the proximate cause of the injury. Beach on Con. Neg., section 7. Webb's Pollock on Torts, 566, et seq. (9) Under the evidence, although the rate of speed of the train was negligence per se, or unlawful, the court should have instructed a verdict for the defendant, for the reason that the plaintiff was also negligent upon going upon the track, and there was no evidence that the defendant could have discovered plaintiff's danger in time to have avoided the injury. Prewitt v. Eddy, supra; Sullivan v. Railroad, 117 Mo. 214; Webb's Pollock on Torts, 570.

J. D. Shewalter, M. C. James and John S. Black-well for respondent.

(1) If it appear from the evidence that the traveler in approaching the railroad did look or listen, or both, then it becomes a question for the jury to determine, considering the situation, the duty of the railroad company, and all the facts and circumstances in evidence, and in this case the age and capacity of the plaintiff, whether the precautions taken were reasonable. Weller v. Railroad, 120 Mo. 648. (2) Where the evidence of negligence on the part of the railroad company which resulted in an injury is clearly established, in order to defeat a recovery as a matter of law on the grounds of contributory negligence, the defense should be clearly made out. 120 Mo. 649, supra; Bluedorn v. Railroad, 108 Mo. 439. (3) If the inferences to be drawn from the evidence are not certain or incontrovertible the question of negligence can not be passed upon by the court. Gratiot v. Railroad, 116 Mo. 466; Tabler v. Railroad, 93 Mo. 79; Huhn v. Railroad, 92 Mo. 440. (4) In order to constitute such negligence as will bar a recovery of damages these two elements must in every case concur: First, a want of ordinary care on the part of plaintiff; second, a proximate connection between this want of ordinary care and the injury complained of. Thomp. Neg. 1148, sec. 3; Beach, Contrib. Neg. 19; 4 Am. & Eng. Encyclopedia of Law, 24, sec. 11; Gregory v. Chambers, 78 Mo. 298. (5) The question of contributory negligence is one for the jury where the facts are in dispute, and it is also one for the jury where the facts though undisputed are such as to lead the minds of sensible men to different conclusions. Church v. Railroad, 119 Mo. 214; Roddy v. Railroad, 104 Mo. 250; Barry v. Railroad, 100 Mo. 195. (6) A person negligently injuring a child may be held liable under circumstances where contributory negligence would have barred an adult. Railroad v. Pitzer, 109 Indiana, 179. (7) A much higher grade of care and watchfulness must be exercised to avoid injuring children than would constitute ordinary care toward an adult; that is, what is ordinary care toward an adult of full capacity may be culpable negligence toward a child. Bransom v. Labrot, 81 Ky. 638; 50 Am. Rep. 193; 54 Am. Dec. 67. (8) The standard of care varies with the age, capacity and experience of the child. Evansich v. Railroad, 57 Texas, 126; 6 Am. & Eng. R. R. Cases, 182; 44 Am. Rep. 586; Linch v. Smith, 104 Mass. 52. (9) Less care and foresight are exacted of an inexperienced youth than a man of mature years. Dowling v. Allen, 88 Mo. 293. (10) Where there is a question whether the child...

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