Huelsenkamp v. Citizens' Ry. Co.
| Decision Date | 31 March 1863 |
| Citation | 34 Mo. 45 |
| Parties | BERTHA HUELSENKAMP, Respondent, v. CITIZENS' RAILWAY COMPANY, Appellant. |
| Court | Missouri Supreme Court |
Appeal from St. Louis Court of Common Pleas.
Sharp & Broadhead, for appellant.
I. As was necessary to constitute it a good or legal petition, plaintiff averred that the killing of her husband was by the carelessness and negligent acts and conduct of appellant's agents and employees, and without any fault or want of care on the part of her said husband. Both of these allegations are put in issue, and both of them must be established by respondent to entitle her to a recovery.
The statute above referred to is declaratory of the common law, providing a remedy to certain relatives in case of death. It does not exempt the person killed from his obligation to care and prudence to avoid injury, nor does it make the railroad liable for any carelessness or negligence if there is also carelessness or fault on the part of deceased. (See the statute above referred to; also, Pierce's R.R. 277; Willetts v. B. & R. R.R., 14 Barb. 585.)
II. It is contended by appellant that the evidence fully establishes, in this case, fault, negligence and recklessness of Huelsenkamp, and no negligence of appellant; and the appellant insists that the whole weight of authority establishes that, even where the injury is caused by the negligence, fault or want of care of each party contributing thereto, there can be no recovery; and to entitle the respondent to a recovery in this case, she must prove that the death of her husband was caused by the fault or negligence of the agents of appellant in charge of its car, and without any fault, negligence or want of care of her husband contributing to his death; and although there may have been fault or want of care of appellant, if the deceased was not free from blame, the appellant is not liable unless the injury was wilfully and intentionally committed. .)
III. The fourth instruction, as given by the court below, for respondent, is contrary to law. It asserts that if the deceased voluntarily would take a wrong position and recklessly place himself in danger, if he was permitted so to do, then he was “guilty of no misconduct or negligence” in recklessly placing himself in danger. (See authorities above cited.)
The instruction is also fatally wrong in withdrawing from the jury the question of misconduct or negligence, for they are told that if deceased was permitted to stand in a position evidently dangerous and improper and was then killed, then he was guilty of no misconduct or negligence in standing on the step, as a matter of law. (Macon & Western R.R. v. Davis' Adm'r, 13 Geo. 87; 9 Wend. 401; 21 Wend. 615.) Where a child of such tender years as not to possess sufficient discretion to avoid danger is permitted by his parents to be in a public highway, without any one to guard him, and is there run over by a traveller and injured, neither trespass or case lies against the traveller, unless the injury was voluntary or arose from culpable negligence. (5 Barb. 337.)
It must appear that defendant's agents were guilty of negligence, and that plaintiff himself was free from negligence and fault. (8 Barb. 369.)
If plaintiff's own negligence and imprudence contributed to the injury, the railroad is not liable. (8 Penn. 171; 2 McMull. 403; 1 Cow. 78; 6 Hill, 592; 6 Cow. 189; 5 Hill, 282.)
Lackland, Cline & Jamison, for respondent.
I. A carrier of passengers is bound to use all care, caution and prudence that human foresight can bring to his aid, and is liable for the least negligence, and must use the highest degree of diligence.
The deceased was not bound to be on the alert, or to use ordinary care, and to look out ahead, to avoid danger. All that is required of a passenger is that he should not have been guilty of any want of ordinary care and prudence which directly contributed to the injury. To exculpate the carrier, the passenger must have been guilty of negligence, which, in whole or in part, was the proximate cause of the injury.
A passenger is not bound to select the safest place. If he is permitted to travel in the baggage car and is injured, the carrier is liable. (Carroll v. N. York & N. Haven R.R. Co. 1 Duer, 580; Zemp v. W. & M. R.R. Co. 9 Rich. 84; Penn. R.R. Co. v. McClosky, 23 Penn. 526; Traw v. Vermont R.R. 24 Vt. 487; Robinson v. Cone, 22 Vt. 213; Berge v. Gardiner, 19 Conn. 507; Linch v. Nurdin, 1 Adol. & El. N. S. t. p. 422.)
II. Although the deceased may have been guilty of misconduct, or failed to exercise ordinary care and prudence while a passenger on defendant's cars, which may have contributed remotely to the injuries or death of deceased, yet if the agents of defendant were guilty of misconduct in the management of said cars, which was the immediate cause of deceased's injuries and death, and with the exercise of prudence by said agents said injury and death might have been prevented, the defendant is liable in this suit.
The above authorities establish the proposition that, although the deceased may have been guilty of remote or indirect negligence, yet if the agents of defendant were guilty of direct or proximate negligence, the plaintiff can recover; and this is the proposition asserted in the above instruction.
III. If the deceased (Huelsenkamp) was killed while being carried as a passenger for hire, upon the defendant's road, and while being so carried was permitted by the agents of defendant to stand on the platform or steps of one of the cars, and to be carried as a passenger in that way, and while standing on said platform or steps was injured or killed by reason of the car upon which deceased was being carried colliding with another of defendant's cars, then deceased was guilty of no misconduct or negligence in standing on said steps. (Carroll v. N. Y. & N. H. R.R. Co. 1 Duer, 571; Zemp v. W. & M. Railw. Co. 9 Richard. 84; Pennsylvania R.R. Co. v. McClosky, 23 Penn. 526; Cullins v. Sch. Railw. 12 Barb. 492.)
This suit was brought under the second section of the (1 R. C. 647.) The petition states the plaintiff to have been the wife of Charles Huelsenkamp, and the defendant was a corporation engaged in the business of carrying persons as passengers from one point to another in the city of St. Louis, and that the defendant undertook to carry Charles Huelsenkamp safely, for hire, in one of its cars, from one point to another in the city of St. Louis, and while he was so being conveyed, the defendant, by its agents, servants and employees, so carelessly, negligently and unskilfully managed, conducted and controlled the said car, and also one other car on said railroad, that in passing each other in said road they were brought into contact with the body of said Charles Huelsenkamp, without any fault on his part, whereby he was killed, and asks judgment for the forfeited sum of five thousand dollars.
The answer put in issue only the allegations of carelessness, negligence and unskilfulness of the defendant, and of the absence of fault on the part of Charles Huelsenkamp.
At the trial, it appeared that Huelsenkamp was killed during the holding of a fair in the outskirts of the city of St. Louis; that it was after dark, and a great number of persons were going in from the fair grounds to the city, and crowded upon the car so that it was entirely filled inside, and on the platforms at each end of the car, and on the steps leading down from the platforms, and that deceased was standing on a step and holding on to the car with his hands, and having his body leaning out laterally from the car, and that in passing by another car, which was stationary upon a turn-out, the cars approached so near together that the body of deceased was crushed between them so that he died almost immediately.
At the instance of the plaintiff, the court gave the following instructions:
1. If you find that deceased was, at the time of his death, the husband of plaintiff, and that defendant was a corporation and a common carrier, and that deceased was a passenger on a car of defendant for hire, and the deceased was carried as a passenger upon the steps of a car of defendant, by its agents because there was no room elsewhere for him in or about the car; and if, while the car upon which deceased was being carried was passing another car of defendant upon a turnout in the road the two cars came in collision with each other, or approached each other so near as to kill...
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