Devitt v. Pacific R.R.

• Decision Date: 31 July 1872
• Citation: 50 Mo. 302
• Parties: MARY DEVITT, Respondent, v. PACIFIC RAILROAD, Appellant.
• Court: Missouri Supreme Court

50 Mo. 302

MARY DEVITT, Respondent,

v.PACIFIC RAILROAD, Appellant.

Supreme Court of Missouri.

July Term, 1872.

Appeal from Kansas City Court of Common Pleas.

J. N. Litton, for appellant.

If Devitt knew of the exposure to danger in having to pass under the bridge, and with such knowledge consented to and did continue in this service, he could not recover. (Hayden v. Smithville Manuf. Co., 29 Conn. 548; Owens v. N. Y. Central R.R., 1 Lansing, N. Y., 108; Wright v. N. Y. Central R.R. Co., 25 N. Y. 566; Dynen v. Leach, 26 Law Jour., N. S. Exch., 221; Alsop v. Yates, 27 Law Jour., N. S. Exch., 156; Buzzell v. Laconia Manuf. Co., 48 Me. 114; McGlynn v. Brodie, 31 Cal. 376; Davis v. Detroit & Milwaukee R.R., 20 Mich. 105; Thayer v. St. Louis, Alton & Terre Haute R.R., 22 Ind. 26; Ind. & Cinn. R.R. v. Love, 10 Ind. 554; Frazier v. Pennsylvania R.R., 38 Penn. St. 104; Griffiths v. Gidlow, 3 Hur. & Nor. 648 Exch.; Skipp v. Eastern Railway Co., 9 Exch. 223; Wonder v. Balt. & O. R.R., 32 Md. 411-420; Moss v. Johnson, 22 Ill. 633; Farwell v. Boston & Worcester R.R., 4 Metc. 57; Coon v. Utica & Erie R.R., 6 Barb., N. Y., 241; 3 Robt., N. Y., 74; Ogden v. Rummens, 3 Foster & F. 751; Smith v. Dowell, id. 238; Priestly v. Fowler, 3 Mees. & W. 1; Coombs v. New Bedford Cordage Co., 102 Mass. 572; Greenleaf v. R.R., 29 Iowa, 14; Schouler Dom. Rel. 620; Shearman & R. Negl. 118, § 94; Pierce Am. Railw. 297.)

W. E. Sheffield, for respondent.

I. As to the question of the negligence of the appellant and also of James Devitt, the instructions given by the court present the matter quite as strongly in favor of the appellant as the law will warrant.

II. No laches or neglect is imputable to an infant during his minority, because he is not supposed to be cognizable of his rights or capable of enforcing them.

BLISS, Judge, delivered the opinion of the court.

The plaintiff recovered damages below, under the third section of the damage act, for the death of her minor son while in defendant's employ. The facts are undisputed. The plaintiff's son was a brakeman on a freight train, and was killed while at his brake upon the top of a freight car, in passing through Post Oak bridge, the cross timbers on the top of the bridge being so low as to strike his head. The accident occurred in the day time, and it was shown that deceased had been in defendant's employ about three weeks; that he had passed this bridge every day during that time; that he had repeatedly been warned to look out for this and other bridges; that when last seen, just before reaching the bridge, he was sitting upon his brake, facing it. The following instructions, asked by defendant and refused, raise the only legal questions necessary to be considered:

“If the jury believe from the evidence that the deceased, James Devitt, while in the employment of his duty as brakeman, passed over the bridge in question (Post Oak bridge) daily for the space of two or three weeks, and that he knew the danger of coming in contact with the top of said bridge, and that his attention had been called to the danger of injury from the lowness of the bridges on his route, and that with this knowledge he sat upon the top of the brake on the freight car, and while so sitting there was in passing struck by the top thereof and killed, then the jury are instructed that this was contributory negligence on the part of deceased, and that plaintiff cannot recover.”

“If the deceased knew of the exposure to danger in serving as brakeman for defendant upon a train having to pass bridges insufficiently high to permit him to pass under them, while standing at full height on the top of a car, and with such knowledg consented to and did continue in the service of the defendant as such brakeman, and was thereafter killed by coming in contact with the top of one of said bridges, then the plaintiff cannot recover from the defendant from any negligence in the construction of the bridge.”

Both these instructions should have been given. Upon the facts supposed in one, the deceased was killed in consequence of his own negligence, which not only contributed to, but was the immediate cause of, his death; and upon the hypothesis embraced in the other, the deceased voluntarily encountered the danger, took upon himself the risk of the low bridge, well knowing its height; and even though it was wrongfully built at that height, and would charge the defendant under other circumstances, the plaintiff cannot recover.

1. Upon the facts first supposed, it would almost seem that the deceased committed suicide; at least that he was trying the extremely hazardous experiment of sitting upon the brake, which was a high one, and which elevated him higher than he would have been...