Morrissey v. Wiggins Ferry Co.
| Decision Date | 31 March 1869 |
| Parties | PATRICK MORRISSEY, Appellant, v. THE WIGGINS FERRY COMPANY, Respondent. |
| Court | Missouri Supreme Court |
Appeal from St. Louis Circuit Court.
On the trial the following among other instructions were given to the jury for defendant:
1. The jury are instructed that they are to consider whether or not there was any negligence on the part of deceased, or a want of care and common prudence ordinarily exercised on such occasions and in like circumstances. And if they believe from the evidence that there was such negligence or want of care and prudence on her part which produced or contributed to produce the accident and death of said deceased (if they believe she was drowned), then they will find for defendant.
2. Unless the jury believe from the evidence that said Annie Morrissey went overboard and was drowned, and that she was then a minor under the age of eighteen years, and the daughter of plaintiff, and that such accident and death were occasioned by the negligence, unskillfulness, or criminal intent of the engineer, agents, or employees of defendant, while running, conducting, or managing the ferry-boat, as it respects the keeping of the entrance to said boat, where passengers go on and off, properly guarded and protected, and as respects keeping lights on said boat and wharf-boat, and unless they further believe that such accident and death resulted without any negligence or want of care on her part which produced or contributed to produce such accident and death, they will find for defendant.
Other facts appear in the opinion of the court.
Morris & Peabody, for appellant.
I. In order to preclude a recovery by plaintiff, the negligence of deceased must have directly contributed to produce her injury and death.
II. If the negligence of defendant's employees was the immediate cause of the death of deceased, and that of deceased the remote cause, and with the exercise of prudence on the part of defendant's employees said injury and death might have been prevented, then the plaintiff is entitled to recover. The law and the evidence of the case warranted the giving of the third and fourth instructions offered by plaintiff and refused by the court. The instructions given for defendant were improper, because they instructed the jury that if there was any negligence on the part of deceased which contributed to produce the accident and death, they should find for defendant. Under these instructions, if there was the least negligence on the part of deceased which contributed to produce the accident and death, the jury could find for defendant.
Ewing & Holliday, for respondent.
Where the accident and death result from the act of deceased in voluntarily taking a dangerous or improper position, when it was practicable to get into a safe and secure place, the carrier is not liable. (Huelsenkamp v. Citizens' Railw. Co., 34 Mo. 45, 52; Winters v. Hann. & St. Jo. R.R. Co., 39 Mo. 468; Kennedy v. N. M. R.R., 36 Mo. 351.)
Although some of the more modern decisions indicate a disposition to restrain the universal application of the rule that the slightest possible negligence on the part of the deceased will in all cases prevent a recovery, yet they have in no degree unsettled the rule that if, notwithstanding the negligence of defendant, deceased, in the exercise of common care and prudence, might have avoided the injury, plaintiff cannot recover.
If the passenger is guilty of negligence which, in whole or in part, was the proximate cause of the injury, the carrier is exculpated. (Huelsenkamp v. Citizens' Railw. Co., 37 Mo. 549.)
This action was brought under the second section of chapter 147 of the General Statutes, and damages claimed to the amount of $5,000, by the plaintiff, as the only surviving parent of Annie Morrissey, who, it is alleged, was a minor and unmarried, and was drowned while crossing the Mississippi river on one of defendant's ferry-boats, in consequence of the negligence, unskillfulness, or criminal intent of defendant's agents and employees in managing said boat.
On the trial in the court below, under certain instructions, the jury found a verdict for the defendant. There was much evidence given, and it was conflicting in its character, but I shall neither detail nor comment on it, as it belongs exclusively to the jury to attach to it whatever weight and consideration they may deem it deserves.
The whole defense was based upon the ground of contributory negligence: that the deceased, through her imprudence and want of care, produced or contributed to the accident in such a manner as ought to preclude a recovery. That there is a difference in the adjudications upon this subject, and that some courts have held...
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Bell v. Hannibal & St. Joseph R.R. Co.
...to use ordinary care, skill and caution to prevent injury, and an injury thereby results, the railroad company is liable. Morrissey v. Wiggins Ferry Co., 43 Mo. 380; Brown v. H. & St. Joe Ry. Co., 50 Mo. 461; Kennedy v. N. M. Ry. Co., 36 Mo. 351; Burnham v. St. L. & I. M. Ry. Co., 56 Mo. 33......
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...... decisions. Boland v. Railroad, 36 Mo. 484;. O'Flaherty v. Railroad, 45 Mo. 70; Morrissey. v. Ferry Co., 43 Mo. 380; Isabel v. Railroad,. 60 Mo. 475; Farris v. Railroad, 80 Mo. 325;. ......
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