Schmitt v. The Missouri Pacific Railway Company
| Decision Date | 12 February 1901 |
| Citation | 60 S.W. 1043,160 Mo. 43 |
| Parties | SCHMITT et al., Appellants, v. THE MISSOURI PACIFIC RAILWAY COMPANY |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Jacob Klein Judge.
Affirmed.
Taylor R. Young, Maurice L. Altheimer and Wm. H. Reynolds for appellants.
(1) The trial court abused its discretion in refusing appellants a new trial on the ground of newly-discovered evidence. The newly-discovered evidence goes to the merits of the case; it is not merely cumulative, corroborative, or collateral appellants were not guilty of laches in failing to produce this testimony at the trial; the utmost diligence was used to secure all facts relative to the injury; its object is not to impeach the credibility of the witnesses, and it is of such a character as ought to be decisive at another trial, of an opposite result on the merits. State v. Bailey, 94 Mo. 311; Howland v. Reeves, 25 Mo.App. 464; State v. Wheeler, 94 Mo. 252; State v Murray, 91 Mo. 95; Longdon v. Kelly, 51 Mo.App. 576; Trimble v. Tautinger, 104 Iowa 665; Schoenlan v. Friese, 14 Mo.App. 436. (2) Defendant's failure to cause the bell on the engine to be constantly sounded while moving within the limits of the city, was, under the decisions of this court upholding section 1239, Revised Ordinances 1887, negligence per se. Hanlon v. Railroad, 104 Mo. 381; Merz v. Railroad, 14 Mo.App. 459. The jury may well have inferred that this negligence on the part of defendant was the proximate cause of the injuries complained of. Bluedorn v. Railroad, 121 Mo. 268. One exercising ordinary care in crossing a railroad track in the limits of a populous city, and who is injured by a train of cars because of the failure of a railroad company to ring the bell as required by ordinance, is entitled to recover. Murray v. Railroad, 101 Mo. 236. (3) Instruction "B" is in conflict with and contradicts instructions 3 and 6 given at plaintiffs' request. Price v. Railroad, 77 Mo. 508. The instruction imposed upon the deceased, a child of tender years, the same degree of care, presence of mind, prudence, forethought and judgment as that required by an adult. This is not the law, never was the law anywhere, and we feel sure ought not and never will be declared the law by this court. Payne v. Railroad, 129 Mo. 416; Spillane v. Railroad, 111 Mo. 555, 135 Mo. 426; Wright v. Detroit, 77 Michigan 230; McGuire v. Chicago, 37 F. 54; McGinness v. Butler (Mass.), 34 N.E. 259; Mowery v. Railroad, 51 N.Y. 666; Huerzeler v. Railroad, 139 N.Y. 490; Traction Co. v. Scott, 33 L. R. A. 125; Bank v. Cook, 29 L. R. A. 761; Pekin v. McMahon, 27 L. R. A. 210.
Martin L. Clardy and Henry G. Herbel for respondent.
(1) One of the six requisites prescribed by this court (27 Mo. 112) for justifying a new trial on the ground of newly-discovered evidence is that the trial court must believe that the newly-discovered evidence "would probably produce a different result if the new trial was granted." In determining this fact many elements and incidents of the trial, which in the very nature of things are incapable of transmission to an appellate tribunal, must be taken into consideration. Howland v. Reeves, 25 Mo.App. 467. An analysis of the newly-discovered evidence will disclose the fact that it was physically impossible for Hanson to have seen what he says he did from the place at which he was standing. In the following cases this court held, as we think it should in this, that the improbability alone of the alleged newly-discovered evidence justified the trial court's action in overruling the motion for a new trial: Schoenlan v. Friese, 14 Mo.App. 437; State v. Ray, 53 Mo. 439; Cook v. Railroad, 56 Mo. 384; State v. Stewart, 127 Mo. 290; State v. Sansone, 116 Mo. 1; State v. Woodward, 95 Mo. 131; Culbertson v. Hill, 87 Mo. 556. (2) The undisputed evidence of at least two of plaintiff's witnesses (for defendant offered no testimony) was that the engine by which the boy was struck gave the customary passing signals to the west-bound freight train, a short distance west of the place at which the boy was struck, and if he did not heed them he certainly would not have heeded the bell. The bell would have appealed only to his sense of hearing, and as he was bound under the law to both look and listen, defendant's failure to ring the bell would not have absolved him from his duty of keeping a constant lookout for trains. As the evidence conclusively showed that he had an unobstructed view of the approaching train for at least five hundred feet, and some of the witnesses said fifteen hundred feet, it follows that his neglect was the proximate cause of his death. Holwerson v. Railroad, 57 S.W. 774. (3) Moreover, under the rulings of this court plaintiffs would not be entitled to recover for defendant's neglect to observe an ordinance regulation, as it is held that a civil liability can not be created by ordinance in the absence of a contract, hence, the instruction was harmless. Sanders v. Railroad, 147 Mo. 411; Byington v. Railroad, 147 Mo. 673; Murphy v. Railroad, 153 Mo. 252; Fath v. Railroad, 105 Mo. 337; Senn v. Railroad, 108 Mo. 142; Holwerson v. Railroad, 57 S.W. 770. (4) When the instructions, taken as a whole, fairly declare the law of the case, the fact that every instruction is not complete in itself will not invalidate them. Doyle v. Trust Co., 140 Mo. 21; Hughes v. Railroad, 127 Mo. 453; Watson v. Railroad, 133 Mo. 248. (5) The boy was guilty of such contributory negligence as ought to bar this action as a matter of law. Graney v. Railroad, 57 S.W. 276; McDermott v. Railroad, 20 S.W. 380; Spillane v. Railroad, 135 Mo. 414; Payne v. Railroad, 136 Mo. 652.
This is an action by plaintiffs, father and mother of Albert B. C. Schmitt, deceased, to recover of defendant company five thousand dollars damages for the death of their son, by reason of the alleged negligence of defendant in failing to discover the boy on its track in time to have avoided the injury; the failure to ring the bell upon the engine, as required by the ordinance of the city of St. Louis, where the accident occurred, and by reason of having defective brakes on its train. No proof was offered upon the last ground of negligence alleged with respect to defective brakes, and it was therefore eliminated from the case.
Upon a trial before the court and a jury, there was a verdict for defendant. In due time plaintiffs filed their motion for a new trial, on the ground of newly-discovered evidence, and the giving of erroneous instructions at the instance of defendant, which being overruled they bring the case to this court by appeal for review.
The facts are substantially as follows:
Between three and four o'clock in the afternoon of August 6, 1897, plaintiff's son who was then ten years and one month old, while walking along upon defendant's southernmost or east-bound of three parallel tracks in the city of St. Louis, was struck, run over and instantly killed by one of defendant's passenger trains which passed that point daily at about that hour. The accident occurred about midway between Tower Grove avenue and King's highway, on defendant's private way, where there was no street crossing said tracks, and where a person standing on the east-bound track at the point where the boy was killed, could see a dog crossing the track at King's highway, which was about fifteen hundred feet distant. Of the three tracks at this point two are what are called main tracks, and the other a switch track; the one upon which the boy was killed is used for east-bound trains, the middle track for west-bound, and the northernmost for a switch track. The defendant had erected sign boards at Tower Grove avenue, warning everybody not to trespass on the tracks. Race Course avenue adjoins defendant's right of way on the north and parallels the tracks. The boy lived a block north of the point at which he was killed, had lived there for ten years prior to his death, had on several occasions been forbidden by his father from walking and playing on the railroad tracks and cautioned by him of the danger in so doing, and had been punished by him on the morning of his death, for loitering about said tracks. Deceased was a bright boy of his age, and had been attending school for about four years.
At the time of the accident the Hill-O'Meara Construction Company was constructing a sewer on the south side of defendant's right of way parallel with defendant's tracks, the northern line of which was about fifteen feet south of defendant's southernmost or east-bound track the intervening space being occupied by the earth thrown out of the trench, which formed a ridge from six to ten feet high, that extended along the south side of the track on which the boy was killed one hundred feet or more. At the western end of the ridge a portable engine, inclosed with boards (referred to in the evidence as the "engine house"), was situated. Shortly before the accident the boy was seen about a team hitched to a wagon from which was being unloaded material for the sewer a little southwest of the engine house. He was called by the engineer of the Hill-O'Meara Construction Company, who was standing at a water barrel on the south side of the engine house rinsing a tin bucket, and upon going to him was seen to take the bucket and start around the west side of the engine house toward defendant's track, which was only a few feet distant, on a path leading thereto. Shortly after he disappeared behind the engine house, a passenger train consisting of an engine and two cars came along, and as there was a west-bound freight train passing that point on the track next north of the track on which...
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