Frick v. St. Louis

• Decision Date: 26 March 1878
• Citation: 5 Mo.App. 435
• Parties: JACOB FRICK, Respondent, v. ST. LOUIS, KANSAS CITY, AND NORTHERN RAILWAY COMPANY, Appellant.
• Court: Missouri Court of Appeals

5 Mo.App. 435

JACOB FRICK, Respondent,

v.ST. LOUIS, KANSAS CITY, AND NORTHERN RAILWAY COMPANY, Appellant.

St. Louis Court of Appeals, Missouri.

Mar. 26, 1878.

1. The jury may make all reasonable inferences from facts in evidence; and where there is evidence to support a verdict, it will not be disturbed on the suggestion that it is against the weight of evidence.

2. Though it is unlawful for one not connected with a railroad to walk upon its tracks, and it is presumed that every one will obey the law, yet this will not relieve the railroad corporation from the duty of keeping a careful lookout while running its trains upon the streets of a city.

3. In an action for damages to the person, occasioned by being run over by a railroad car, the material question to be determined is, what was the immediate cause of the final act producing the injury; and where plaintiff's negligence is a remote condition, and that of defendant the causa causans, plaintiff's negligence is no bar to a recovery.

4. What is ordinary prudence depends, not upon abstract propositions, but upon the facts surrounding each case.

5. A two-year-old child, while walking upon a railroad track, was injured by the train backing over it; there was evidence tending to show that no one on the train saw the child, and that if some one on the train had been on the lookout the accident could have been avoided. Held, that it was not error to refuse to instruct that defendant was not liable for the damages occasioned by the child being run over.

APPEAL from St. Louis Circuit Court.

Affirmed.

WELLS H. BLODGETT, for appellant: The burden of proof of negligence is wholly upon plaintiff, and negligence cannot be presumed from the fact that an accident and an injury have occurred.-- Schultz v. Railroad Co., 37 Mo. 32. The child was upon defendant's track in violation of law.--Wag. Stat. 311, sec. 43. It is presumed that every one will obey the law.--2 Keyes, 161; Pennsylvania R. Co. v. Hummell, 44 Pa. St. 377; Brown v. Lynn, 7 Casey, 510; Reeves v. Railroad Co., 6 Casey, 454. Defendant's instruction in the nature of a demurrer to the evidence should have been given.-- Boland v. Railroad Co., 36 Mo. 491; Keys v. Railroad Co., 65 Pa. St. 276; Bannon v. Railroad Co., 24 Md. 125; Maher v. Railroad Co., 64 Mo. 276; Railroad Co. v. Spearen, 47 Pa. St. 304; Shear. & Redf. on Neg., sees. 48, 48a, 49; 40 Ind. 545; 49 Ind. 154; Railroad Co. v. Snyder, 24 Ohio St. 670; Wright v. Railroad Co., 4 Allen, 283. Negligence and contributory negligence.-- Isabel v. Railroad Co., 60 Mo. 482; Karle v. Railroad Co., 55 Mo. 484; Brown v. Railroad Co., 50 Mo. 461. Measure of damages.--Shear. & Redf. on Neg., sec. 608; Gillegan v. Railroad Co., 1 E. D. Smith, 453; Sedgw. on Dam. (6th ed.) 545, note 3.

MCGAFFEY & STEBER, for respondent: Where the negligence of defendant is proximate, and that of plaintiff remote, an action for damages may be sustained though plaintiff is not entirely without fault.-- Hulsenkamp v. Railroad Co., 37 Mo. 552; O'Flaherty v. Railroad Co., 45 Mo. 70; Morrissey v. Ferry Co., 43 Mo. 383; Boland v. Railroad Co., 36 Mo. 484; Railroad Co. v. Stout, 1 Cent. L. J. 202; Adams v. Ferry Co., 27 Mo. 95. Negligence and contributory negligence.-- Brown v. Railroad Co., 50 Mo. 467; Whalen v. Railroad Co., 60 Mo. 323; Wyatt v. Railroad Co., 55 Mo. 485.

HAYDEN, J., delivered the opinion of the court.

This is an action to recover damages for an injury to a female child of the plaintiff, who lost an arm and leg by being run over by a train of the defendant. The injury was received within the limits of the city of St. Louis, but not at a point where the defendant's track crossed any street or public place where persons had a right to pass. The plaintiff lived about two hundred feet from the track, and it appears that the child, whose age was about two and a half years, was discovered on, or crawling upon, the track; but how it got there did not appear. The plaintiff's evidence tended to show that, while at the crossing at Grand Avenue, a witness saw the train, and then discovered the child in the middle of the track; that this witness, a woman, and a neighbor of the plaintiff, cried, “Stop, stop; there is a child on the track!” and ran down the track towards the child; that while she was yet at a considerable distance from the child, the cars ran over it. It appeared that the train was a construction train, consisting of ten flat-cars, a caboose, a tender, and an engine; that the engine was in the rear, pushing the cars; and that the three front cars were loaded with stones, which were piled upon their platforms. The witness referred to, Mrs. Hahn, testified that she continued on the track until she met the train; that as she ran down the embankment she heard the whistle, and that the train then stopped at once; that while she was running down the track towards the child, the men on the train motioned to her to get off the track; that the accident happened at about nine or ten o'clock in the morning; and that there was nothing to prevent persons on the train from seeing the child on the track, except the earth or stones with which the cars were loaded. There was testimony of the defendant tending to show that the train was running westward, and that a brakeman of defendant was at the west, or forward, end of the front flat-car, as it approached the child; that the train was running at from four to five miles an hour; that this brakeman discovered the child in the act of crawling upon the track, when the child was about the length of a car and a half, or two cars and a half from him; that when he saw the child, he gave the signal to stop at once; that he then set his brake on the front car, and on the next car; that the engineer responded to his signal, called for brakes, and stopped the train as soon as he could.

The instructions, so far as necessary, are noticed below. The jury found for the plaintiff in the sum of $4,585, of which the plaintiff remitted $1,500. The case is here by appeal.

It is insisted that the demurrer to the evidence should have been sustained. But, upon the facts, it appears that the essential question in this case was as to the weight of evidence, and addressed itself, after the verdict, to the trial court. It was for the jury to make all reasonable inferences. Giving the appellant the full benefit of the rule that only such, and not forced or violent, conclusions are permitted, it cannot be denied that there was evidence tending to prove the plaintiff's case. Take, for instance, the point upon which appellant especially insists,--that the testimony shows that it would have been doing well to stop a train in from three hundred to four hundred feet, and that Mrs. Hahn says that when she first saw the child the front car was within one hundred and fifty feet of where the child was. In the first place, this one hundred and fifty feet is no exact measurement. It is a woman's judgment as to distance. Then Kane testifies, for the plaintiff, that if the train had plenty of brakemen, and the engineer knew of it, witness thinks the train could have been stopped in forty or fifty feet. It is true that, upon cross-examination, he testified differently. But on cross-examination he was not correcting an error of fact, but, under the pressure of leading and argumentative questions put to him, giving a different opinion. He was an employee of the railroad company; and whether his opinion as expressed in the first instance or upon cross-examination was better, it was for the jury to say. It appears, moreover, according to the testimony of the appellant's witnesses, that the distance within which a train can be stopped depends on many circumstances,--as, on the condition of the rails, of the brakes, on the grade, on the speed, etc. Thus the whole question is so involved in circumstances as to make it eminently a question for the jury. Again, compare the fact that Kane testifies that from Grand Avenue, where Mrs. Hahn started to run, to the corner of the fence where the child was on the track, was a little over five hundred feet, with his testimony that Mrs. Hahn was about three or four car-lengths from the child when it was run cver. From this the jury may have inferred that there was ample time in which to stop the train; especially as, if the brakeman saw the child when it first got upon the track, he must have seen it at least as soon as Mrs. Hahn did.

But the conflict of evidence, making the question one for the jury, appears in other ways. If Goodell, the brakeman, is to be believed, the appellant was without fault. But if Mrs. Hahn saw the child upon the track when and...