38 S.W. 308 (Mo. 1896), Payne v. Chicago & Alton Railroad Company

Citation:38 S.W. 308, 136 Mo. 562
Opinion Judge:Sherwood, J.
Party Name:Payne, by Next Friend, v. Chicago & Alton Railroad Company, Appellant
Attorney:George Robertson for appellant. John S. Blackwell, J. D. Shewalter, and M. C. James for respondent.
Judge Panel:Sherwood, J. Gantt, Macfarlane, and Robinson, JJ., concur. Burgess, J., in paragraph 4 only. Brace, C. J., and Barclay, J., dissent.
Case Date:December 23, 1896
Court:Supreme Court of Missouri
 
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Page 308

38 S.W. 308 (Mo. 1896)

136 Mo. 562

Payne, by Next Friend,

v.

Chicago & Alton Railroad Company, Appellant

Supreme Court of Missouri

December 23, 1896

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

Reversed.

George Robertson for appellant.

(1) There is no allegation in the petition or reply that plaintiff is not responsible, and before plaintiff is entitled to have that question passed upon it should be pleaded. Want of capacity must be pleaded. Pom. Code Rem., sec. 711. (2) The court should have instructed a verdict for the defendant either at the close of plaintiff's case or at the close of all of the evidence. Putting the construction claimed for it by plaintiff upon his own evidence it is conclusively proven that he went upon a railroad track in front of a plainly and rapidly approaching engine, knowing the danger to be apprehended from his act. Harlan v. Railroad, 64 Mo. 480; Harlan v. Railroad, 65 Mo. 22; Beusching v. Gaslight Co., 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; Yarnall v. Railroad, 75 Mo. 583; Guenther v. Railroad, 108 Mo. 18; Prewitt v. Eddy, 115 Mo. 283; Hayden v. Railroad, 124 Mo. 566; Kelsey v. Railroad, 129 Mo. 362. (3) Although the rate of speed was negligence per se, the negligence of plaintiff contributed to the injury, and there was no evidence that defendant's employees could have discovered plaintiff's danger in time to have avoided the injury. Prewitt v. Eddy, 115 Mo. 283; Sullivan v. Railroad, 117 Mo. 214; Webb's Pollock on Torts, 570. (4) The second instruction for the plaintiff is erroneous because of the use of the word "round" before "compensation." From it the jury get the idea that something more than real or just compensation is recoverable. The third instruction is erroneous for not confining defendant's liability for damages to the public crossing, as the evidence discloses that persons crossed over the railroad there at other points and all the points of crossing were called Russell street crossing. Instruction 4 is also erroneous, as under it plaintiff might have walked into a running train of cars in his effort to get over the crossing and yet be entitled to recover. Number 6 is erroneous. The jury may have believed that plaintiff was aiming to take hold of the moving train or to get upon it, yet under this instruction defendant would be liable if the jury may further have thought had the train been running at a rate of speed of six miles an hour or less the accident would not have happened. (5) Number eight given for plaintiff is error. The jury is told that plaintiff is expected to use such care and prudence as might be reasonably expected from a boy of his age and capacity. This is not the rule. That care is required of a child which its capacity enables it to use. Beach on Contrib. Neg., secs. 117-136; Railroad v. McWhirten, 77 Texas, 356; Railroad v. Young, 81 Ga. 397; Railroad v. Gladman, 15 Wall. 401; Payne v. Railroad, 129 Mo. 416. This instruction is in conflict with defendant's number 6. (6) Number nine is error, as submitting an issue not made by the pleadings and further for charging the defendant with negligence under a state of facts of which it or its servants may not have had notice. (7) The verdict is contrary to defendant's instructions number 6, 7, 9, and 11. The hypothetical facts of each were true and undisputed, and, being such, the defendant was entitled to a verdict. (8) Taking the whole testimony together and considering the age and capacity of plaintiff, he was guilty of such contributory negligence as to preclude a recovery. Masser v. Railroad, 68 Iowa 602; Ecliff v. Railroad, 64 Mich. 196; Messenger v. Dennie, 137 Mass. 197; Murray v. Railroad, 93 N.C. 92; Potter v. Railroad, 92 N.C. 541; Twist v. Railroad, 39 Minn. 164; Tucker v. Railroad, 124 N.Y. 670; Payne v. Railroad, 129 Mo. 416. (9) The court erred in overruling defendant's objections to testimony.

John S. Blackwell, J. D. Shewalter, and M. C. James for respondent.

(1) Appellant's first point is without merit, force, or authority. Plaintiff's petition and reply, both before and after verdict, were and are sufficient. Besides he made no objection in the trial court, either on the first or second trials, and it is too late to object for the first time in this court on the second appeal and hearing. Haynes v. Trenton, 123 Mo. 326; Gilson v. Railroad, 76 Mo. 286; Edmonson v. Philips, 73 Mo. 62; Crow v. Railroad, 57 Mo.App. 135. (2) The authorities cited by appellant under the second point of his brief have no application whatever to the facts of this case. They are all cases to recover damages for injuries received by adults who were, in most cases, trespassers upon the track. (3) Appellant's assumption that plaintiff was guilty of contributory negligence and can not recover, is not justified by the evidence nor the inferences therefrom. The case of Sullivan v. Railroad, 117 Mo. 214, is not only against defendant but unanswerable and conclusively in favor of plaintiff on many of the material and cardinal points and issues in this case. (4) No valid or reasonable objection can be made to any of plaintiff's instructions, and appellant's criticisms thereof under its points 4, 5, and 6 are without merit. (5) The cases of Masser v. Railroad, 68 Iowa 602; Railroad v. Young, 81 Ga. 397; 64 Mich. 196; Twist v. Railroad, 39 Minn. 161; Tucker v. Railroad, 124 N.Y. 308; Murray v. Railroad, 93 N.C. 92; Potter v. Railroad, 92 N.C. 541; Messenger v. Dennie, 137 Mass. 197, are cited by appellant under its point 8. Upon an examination of these cases the court will find that not a single one of them is applicable to the facts, conditions, or surroundings of the case at bar. (6) A child is not negligent if he exercises that degree of care which, under like circumstances, would reasonably be expected of one of his years and capacity. Whether he used such care in a particular case is a question for the jury. Beach on Contrib. Neg., sec. 117; Eswin v. Railroad, 96 Mo. 290; O'Flaherty v. Railroad, 45 Mo. 70; Plumley v. Birge, 124 Mass. 57; Meibus v. Dodge, 38 Wis. 300; Railroad v. Young, 81 Ga. 397; Schmitz v. Railroad, 119 Mo. 256; Spillane v. Railroad, 111 Mo. 555; Burger v. Railroad, 112 Mo. 238; Payne v. Railroad, 129 Mo. 405; Bluedorn v. Railroad, 121 Mo. 268. (8) The question of contributory negligence must be considered in view of the age, understanding, and intelligence of plaintiff. It can not be said, as a matter of law in all cases and under all circumstances, that a boy of eleven years of age and possessed of ordinary intelligence has or has not the judgment and discretion which would charge one of maturer years with contributory negligence. Each case must be decided in respect to the particular child and the circumstances attending the particular injury. Payne v. Railroad, 129 Mo. 405; Beach on Contrib. Neg., secs. 117, 136; Ridenhour v. Railroad, 102 Mo. 286. (9) If it appear from the evidence that the traveler, in approaching the railroad track, 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, capacity, thoughtfulness, and discretion of plaintiff, whether the precautions taken were reasonable. Waller v. Railroad, 120 Mo. 635; Bluedorn v. Railroad, 108 Mo. 439; Petty v. Railroad, 88 Mo. 306. (10) 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. (11) What might appear to be reasonable to a boy of tender years might be most unreasonable to an adult person of more discretion, and it was for the jury to take such difference into consideration in determining the question of contributory negligence on the part of the plaintiff. Hemmingway v. Railroad, 72 Wis. 42; Wright v. Railroad, 77 Mich. 123; Barry v. Railroad, 92 N.Y. 289; Bryne v. Railroad, 83 N.Y. 620; Swoba v. Ward, 40 Mich. 420. (12) The question as to whether or not the unlawful rate of speed of the train was the direct and efficient cause of plaintiff's injuries, and the question as to whether the plaintiff did or did not, in attempting to cross said track at said crossing, exercise that degree of care which, under like circumstances, would reasonably be expected of one of his age and capacity, were submitted to the jury under proper instructions, and the jury having found for the plaintiff, the defendant has no cause of complaint and the judgment ought to affirmed. Burger v. Railroad, 112 Mo. 249; Eswin v. Railroad, 96 Mo. 290; Spillane v. Railroad, 111 Mo. 555; Schmitz v. Railroad, 119 Mo. 256; Payne v. Railroad, 129 Mo. 405; Railroad v. Boozer, 70 Texas, 530; Railroad v. Stout, 17 Wall. 660; Haycroft v. Railroad, 64 N.Y. 336. (13) Defendant can not claim or take any advantage of conditions and situations brought about by its own culpable negligence and wrongdoing. Sullivan v. Railroad, 117 Mo. 214; Shearman and Redfield on Negligence, sec. 13; Rine v. Railroad, 88 Mo. 392; Railroad v. McDonald, 43 Md. 534; Haas v. Railroad, 41 Wis. 49; Johnson v. Railroad, 31 Minn. 283.

Sherwood, J. Gantt, Macfarlane, and Robinson, JJ., concur. Burgess, J., in paragraph 4 only. Brace, C. J., and Barclay, J., dissent.

OPINION

Page 309

[136 Mo. 568] In Banc.

Sherwood, J.

The plaintiff, who is a negro boy, sues by next friend for injuries received by him as the result of being run over by a train of defendant's cars in the city of Higginsville, on the evening of the sixth of May, 1892, at about 8 o'clock.

At that...

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