Schmidt v. St. Louis R. Co.

• Decision Date: 31 March 1899
• Parties: SCHMIDT et al. v. ST. LOUIS R. CO.
• Court: Missouri Supreme Court

50 S.W. 921

149 Mo. 269

SCHMIDT et al. v. ST. LOUIS R. CO.

Supreme Court of Missouri, Division No. 1.

March 31, 1899.

WITNESSES — CREDIBILITY — REMARKS OF COURT.

1. A comment made by the judge, in the presence of the jury, which assumes that a witness is attempting to evade a question on cross-examination, and give testimony favorable only to the party calling her, is prejudicial error.

2. It invades the province of the jury to instruct that if a witness has given different testimony on the same subject, on different occasions, and no reason is advanced for the difference, the jury may disregard his entire testimony.

Appeal from St. Louis circuit court; James E. Withrow, Judge.

Action by Adam Schmidt and another against the St. Louis Railroad Company. From a judgment in favor of defendant, plaintiffs appealed. Reversed.

Sale & Sale, for appellants. Smith P. Galt, for respondent.

VALLIANT, J.

This is an appeal from a judgment upon a verdict for defendant in a suit brought by plaintiffs to recover damages for the death of their daughter, aged nine years, who was run over by a street car of defendant and killed, in St. Louis, November 15, 1893. The petition alleges that at the time defendant was operating a cable street railroad along Broadway, under license from the city, which reserved the right to regulate the running of cars and their rate of speed, and that there was then an ordinance of the city in force which provided: "The conductor and gripman or other person in charge of any street car shall keep a vigilant watch for persons on foot, especially children, either on the track or moving towards it, and, on the first appearance of danger to such persons, the car shall be stopped in the shortest space and time possible." The petition also alleges that plaintiffs' child was run over and killed at the corner of Lemp avenue and Broadway, by a train of defendant's cars, on November 15, 1893, and charges the negligence as follows: "That immediately prior to the happening of the accident said train was moving north on Broadway, on a down grade, approaching the intersection of Broadway with Lemp avenue, and, while so moving, said train was negligently permitted to run at full speed, with all its brakes thrown off; that while so running, and approaching Lemp avenue, the gripman negligently failed to give any warning of the approach of said train to Lemp avenue; that the gripman and conductor, and each of them, negligently failed to keep a vigilant watch, or any watch whatever, for persons moving towards the track; and that, but for their negligence in this respect, Maggie Schmidt could have been seen approaching the track in time to have prevented the accident." The defendant denied the negligence alleged, and pleaded contributory negligence on the part of Maggie Schmidt in failing to look or listen for the approaching cars of defendant before attempting to cross the street.

The testimony on the part of the plaintiff tended to show that the accident occurred at the time and place stated, at the hour of noon, at which time the Shepard School, located a block and a half east of Broadway, had just been dismissed for the noon recess, and there were school children on Broadway near where the deceased child attempted to cross the track. The train was going north on Broadway. As it approached Marine avenue, which is the next street south of Lemp avenue, where the accident occurred, there was a lot of school children chasing across Broadway ahead of the train. The gripman rang the bell on approaching Marine, but not on approaching Lemp, avenue. The sun was shining and the track was dry. After leaving Marine avenue, the train was going on a down grade, at the full speed of the rope, 12 miles an hour, which was the limit of speed fixed by ordinance, and the car struck the child with full force, when she was about the middle of the track, the post where the headlight is fastened striking her head, and her cap flew back into the aisle of the grip car. Just as the car struck her the brakes were applied, and when it stopped it was found that she had slipped under the life guard, had been dragged about 30 feet, and was lying with her head wedged against the grip that goes into the slot. The testimony on the part of plaintiff also tended to show that, as the train was passing Marine avenue, there was a drunken man there near the sidewalk, who attracted the gripman's attention, and the gripman was looking back at this man, and continued to do so until the dashboard of the grip car struck the child.

The testimony on the part of defendant tended to prove that the train was running at full speed, 12 miles an hour. The gripman was looking ahead. There was a buggy passing south, on the east side of the street. As the child ran from the sidewalk, this buggy obstructed the gripman's view, and he did not see her until she appeared from behind the buggy. He immediately did his best to stop the car, but it was impossible to do so.

In rebuttal, testimony for plaintiff tended to prove that there was no buggy passing, as claimed by the gripman.

At the instance of plaintiffs, the court gave the following instructions, having first modified all but one of them by inserting the words which appear in italics:

"(1) Upon the issue as to whether deceased was guilty of negligence contributing to her death, such as will prevent plaintiffs from recovering in this case, the court instructs you that the law requires all persons situated as deceased, Maggie Schmidt, was, when and before the accident happened, to exercise ordinary care and caution to avoid the injury to themselves, and that the absence of such care and caution constitutes negligence. In determining, however, whether the deceased, Maggie Schmidt, was guilty of such negligence, the jury should take into consideration her age and capacity, since the law requires of a child nine years old only such care and caution as might reasonably be expected of one of her age, under similar circumstances. If, therefore, you find that the deceased, Maggie Schmidt, was using the care that children of her age and capacity usually exercise, or that might reasonably be expected from one of her age and capacity under similar circumstances, then she was not guilty of negligence, within the meaning of the law and these instructions. The court further instructs you that the burden of showing that the deceased, Maggie Schmidt, was guilty of negligence contributing to her death, is upon the defendant company.

"(2) The jury are instructed that, even if they should find from the evidence that the deceased. Maggie Schmidt, was negligent in going upon the track of the defendant company, yet the court further instructs you that such negligence will not, of itself, prevent a recovery in this case by plaintiffs, provided you further find from the evidence that the gripman, by keeping a vigilant watch for persons moving towards the track, could have seen said Maggie Schmidt approaching the track in time to have prevented the train from running over and killing her. If you find from the evidence that said gripman and conductor, or either of them, was not keeping such a vigilant watch, and you further find from the evidence that the deceased, Maggie Schmidt, would have been seen by said gripman in a position of danger in time to have avoided running over and killing her, by the exercise of ordinary care on his part, then your verdict should be for the plaintiffs, although you should also find that the deceased was guilty of negligence in going upon the track.

"(3) The court instructs the jury that it was the duty of defendant's gripman to sound his gong or bell when approaching Lemp avenue, so as to give notice to persons desiring to cross said street of the approach of the train of cars; and if you find from the evidence that said gripman failed to sound his gong or bell, or give any other warning, when approaching said avenue, and that, but for his failure to sound his gong or bell or give such warning, the accident complained of would not have happened, your verdict should be for the plaintiffs, provided you further find from the evidence that Maggie Schmidt at the time exercised such care for her own safety as could be reasonably expected of a child of her age and capacity."

"(5) The court instructs the jury that the law requires that the defendant's servants should be watchful to see that the way is clear in the direction in which the train is moving, and that, where they have reason to anticipate the sudden and unexpected appearance of children upon or approaching the track, they should so manage the grips and brakes of the cars as to be able to stop the cars quickly and readily, should occasion require. If, therefore, under all the circumstances detailed in the evidence, you find that there was reason to anticipate the sudden and unexpected appearance of children upon or approaching the track at the intersection of Lemp avenue with Broadway, and you further find that the defendant's servants in charge of its train of cars were not so managing its grip and brakes so as to be able to stop said train readily and quickly, should occasion require, and you further find that the death of plaintiffs' daughter was caused by the failure of defendant's servants to so manage said grip and brakes, then your verdict must be for plaintiffs, provided you further find from the evidence that Maggie Schmidt at the time exercised such care for her own safety as could be reasonably expected of a child of her age and capacity."

The court also gave, at the instance of the defendant, several instructions, the first, fifth, sixth, and seventh of which are not complained of. The others are as follows:

"(2) The court instructs the jury that it is the duty of persons, before crossing the street upon which cable cars run, to listen and look for cars that may be approaching; and if they can be heard or seen, and there is any...