Baird v. Citizens' Railway Company

• Decision Date: 21 November 1898
• Citation: 48 S.W. 78,146 Mo. 265
• Parties: Baird v. Citizens' Railway Company, Appellant
• Court: Missouri Supreme Court

48 S.W. 78

146 Mo. 265

Baird v. Citizens' Railway Company, Appellant

Supreme Court of Missouri, Second Division

November 21, 1898

Appeal from St. Louis City Circuit Court. -- Hon. James E. Withrow Judge.

Affirmed.

Smith P. Galt for appellant.

(1) Plaintiff's right of recovery rests primarily and solely upon the cause of action, if any, granted under section 4425 of the Revised Statutes of Missouri, 1889, the provision of which that is applicable to this case, being, "if such deceased being a minor and unmarried," and there was no averment in the petition that the deceased was "unmarried," nor was there any evidence at the trial in that regard. Therefore there was a total failure to allege or to prove a cause of action, or right of recovery. Proctor v. Railroad, 64 Mo. 112; Sparks v Railroad, 31 Mo.App. 111; Dulaney v. Railroad, 21 Mo.App. 597; Barker v. Railroad, 91 Mo. 86; R. S 1889, sec. 2047. (2) There was no evidence on the part of plaintiff that the gripman was "failing to keep a proper lookout for persons approaching its tracks," or that the gripman, "by the exercise of reasonable diligence could have discovered the peril in which the plaintiff's said minor son was placed on or near the tracks of the defendant in time to have avoided injury, and that he negligently and carelessly failed to stop said train, after such peril was or could by the exercise of reasonable care have been seen by him, and thus have avoided the injury to said minor." Or that there was any negligence on his part "in failing to sound a gong or warning signal that is required by proper and prudent management and as is customary when persons are in close proximity to its tracks," which are the sole allegations of negligence in the petition, according to the evidence for plaintiff. Maschek v. Railroad, 71 Mo. 276; Watson v. Railroad, 133 Mo. 246; Van Natta v. Railroad, 133 Mo. 13; Sullivan v. Railroad, 133 Mo. 1; Spillane v. Railroad, 135 Mo. 414.

L. Frank Ottofy for respondent.

(1) The allegation of the petition that she was the mother of a minor aged six years, justifies the inference that he was childless and unmarried, and this is sufficient. McIntosh v. Railroad, 103 Mo. 131; Czezewzka v. Railroad, 121 Mo. 201. (2) Where the facts are either disputed, or different inferences may be fairly drawn from undisputed facts, the question of negligence is for the jury," and authorities are superfluous to support the proposition. Eichorn v. Railroad, 130 Mo. 575; Purtell v. Jordan, 156 Mass. 573; Wallace v. Railroad, 37 P. 477; Graney v. Railroad, 140 Mo. 89. (2) Instruction number 1 for plaintiff was properly given: (a) Because it is amply supported by the evidence. (b) Because defendant's criticism that the instruction referred to the time when the boy was on the pavement is unwarranted. Bamberger v. Railroad, 31 S.W. 163. (c) Because the failure to give an alarm or warning signal is negligence. When a boy six years of age is going into a position of danger, the gripman should have given him a warning signal by bell, or otherwise. Mitchell v. Railroad, 37 P. 341; Nixon v. Railroad, 109 Mo. 413; Railroad v. Watkins, 26 S.W. 761; Johnson v. Railroad, 86 Wis. 71; Guenther v. Railroad, 95 Mo. 299; Railroad v. Barber, 31 S.W. 482. (d) Because the defendant's refused instruction, number 6, accepted the same theory as set out in this instruction. (3) The failure of the gripman to look ahead when within thirty-five feet of the boy, was negligence. It was his duty to keep a vigilant lookout for him, and to discover him on or near the track in a position of peril. Evers v. Traction Co., 176 Pa. St. 376; Rosenkranz v. Railroad, 108 Mo. 9; Humbird v. Railroad, 110 Mo. 76; Moore v. Railroad, 126 Mo. 265; Bunyon v. Citizens, 127 Mo. 13; Mitchell v. Railroad, 37 P. 341; Evers v. Traction Co., 176 Pac. St. 376; Spillane v. Railroad, 111 Mo. 555; Consolidated Traction Co. v. Scott, 33 L. R. A. 122. (4) The motorman's negligence may be inferred from circumstances. Haynes v. Railroad, 54 Mo.App. 582; Atkinson v. Oelsner, 10 N.Y.S. 822.

Burgess, J. Gantt, P. J., and Sherwood, J., concur.

OPINION

Burgess, J.

This is an action instituted by plaintiff, the mother of Harry Baird, a minor, for the recovery of $ 5,000 damages under the provisions of section 4425 (Revised Statutes 1889) for his death, occasioned, as she alleges, by the negligence of defendant.

The petition alleges that plaintiff is a widow, and the mother of Harry Baird who died on the thirty-first day of May, 1893, then aged six years, but it does not allege that he was unmarried.

The acts of negligence are alleged to be that defendant "in failing to sound the gong, or warning signal, as is required by proper and prudent management, and as is customary when persons are in close proximity to its tracks and in failing to keep a proper lookout for persons approaching its tracks," struck the said minor by its grip car of said train, and injured him so that he died within a short time thereafter, and that the failure of defendant's servants and agents in charge of and operating said train of cars, to sound the gong, or warning signal, while said minor was approaching its tracks, and going into, and in a position of danger, and to keep a proper lookout for persons on, or approaching its tracks, was the direct result of said injuries; that the servants in the employ of defendant "in charge of said train, did or by the exercise of reasonable diligence could have discovered the peril in which the plaintiff's said minor son was placed on or near the tracks, in time to have avoided the injury, but, negligently and carelessly, failed to stop said train after such peril was or could by the exercise of reasonable care have been seen by its servants or employees in charge of said train, and thus have avoided the injury to said minor."

The answer admitted the incorporation and business of defendant, the relationship of plaintiff to deceased and that he came to his death by reason of being run over by a car of the defendants and denied all the other allegations of the petition, and further averred that his death was the result of his own negligence in running in front of or against the front corner of the grip car, while the same was in rapid motion; which averment was denied by the reply.

There was a trial to a jury who rendered a verdict in favor of plaintiff for $ 5,000 upon which judgment was rendered, from which defendant appeals.

The facts of the case as disclosed by the evidence, briefly stated, were that plaintiff's son, Harry, aged six years, small of his age, and rather clumsy, about 5 o'clock P. M. of May 13, 1893, started with his sister Lulu from number 3512, Easton avenue, St. Louis, where they resided with their mother, to a grocery store about two blocks distant, on an errand. Lulu forgot what she had been sent for, and sent Harry back to the house to ascertain what it was. When he reached the house Minnie Meyers, a domestic, informed him what was wanted, when he started back across the street in a diagonal direction to join his sister, but stopped at the curb of the sidewalk until an east bound car passed, and then started on at a fast walk, and after he had gone about twenty or twenty-five feet more, he was struck by a west bound car, at a point seventy feet from the door of his mother's residence, thrown under it, and fatally injured, his body being found under the center of the car. Evidence adduced by the plaintiff tended to show that this car was some distance east of where the accident occurred, at the time the boy left the sidewalk and started across the street the last time. After he was struck by the train of cars, he was dragged about sixty feet to the point where the train was stopped.

The train that caused the injury, consisting of a trailer and a grip car, stopped to let off a lady and child where Francis street intersects Easton avenue, the front of the grip car being at that time about fifty feet from where the accident occurred.

Plaintiff's evidence also tended to show that when the train left this point that it started up slowly, and when at a point about thirty-five feet from the point of the accident the gripman was looking north and kept looking in that direction. That about this point a boy named O'Brien jumped on the grip from the north side. That the gripman gave no alarm; the bell only being rung at Francis street, when two taps were given. That O'Brien jumped on the foot rail of the grip, about the third seat from the front facing west, turned round quickly, and walked back about six feet and jumped off, when he immediately heard a commotion and a hollowing. That the grip car went on its way with the boy under it, when the evidence showed that it could have been stopped in twenty-five or thirty feet. The gripman testified that the car came to a stop about the center of a fence, which is sixty feet distant from the point of collision. No warning was given at the time the boy was struck. That there was nothing to prevent the gripman from seeing the boy had he been looking in the right direction.

The evidence upon the part of defendant tended to show that as the train going west was approaching the point of the accident one or two east-bound trains passed on the south track, and behind the east-bound train was a coal wagon with a large bed on it, and as the west-bound car was within four or five feet of the hind end of the coal wagon the deceased suddenly ran from behind the wagon against the south front corner of the cable car, which extended about seven inches outside of the rail. That at the moment the boy appeared in sight, the gripman saw him and threw his grip to release the cable instantly, and put on both brakes of the grip car as quickly and hard as...