61 S.W. 874 (Mo. 1901), Anderson v. Union Terminal Railroad Company

Citation:61 S.W. 874, 161 Mo. 411
Opinion Judge:ROBINSON, J.
Party Name:ANDERSON, by Next Friend, v. UNION TERMINAL RAILROAD COMPANY et al., Appellants
Attorney:Trimble & Braley and Edwin Silver for appellants. Ellison & Turpin and Frank Hagerman for respondent.
Case Date:March 26, 1901
Court:Supreme Court of Missouri
 
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Page 874

61 S.W. 874 (Mo. 1901)

161 Mo. 411

ANDERSON, by Next Friend,

v.

UNION TERMINAL RAILROAD COMPANY et al., Appellants

Supreme Court of Missouri, First Division

March 26, 1901

Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.

Affirmed.

Trimble & Braley and Edwin Silver for appellants.

(1) (a) The court erred in permitting plaintiff, against defendants' objections, to read in evidence section 3 of ordinance 833, and ordinance 522, of Kansas City, Kansas. By these ordinances, a civil liability was sought to be created, in favor of plaintiff against the defendants, in the absence of any averment in the petition that defendants had accepted said ordinances. The admission of the ordinances in evidence was therefore error. Sanders v. Railroad, 48 S.W. 855; Byington v. Railroad, 49 S.W. 840. (b) The general character and course of the trial and the fact that the verdict is obviously overwhelmingly against the weight of the evidence, strongly indicates that the unfavorable impression necessarily produced by the illegal evidence remained with the jury after their retirement to the jury room. Such being the case, the error in its admission was not cured by the instruction, given long after its admission, withdrawing it from the jury. Cobb v. Company, 12 Mo.App. 130; Meyer v. Lewis, 43 Mo.App. 417; Stephens v. Railroad, 96 Mo. 207; Erben v. Lorillard, 19 N.Y. 299; McAllister v. Press Co., 85 Mich. 453. (2) Plaintiff, according to his own testimony, as detailed by himself on the witness stand, was guilty of contributory negligence as a matter of law, notwithstanding his youth, in approaching within "one or two feet" of the track before looking back for the train (especially when he knew it was behind him and coming in his direction), and also in walking backwards four or five steps, after seeing the train the last time, until he fell over the cinder pile. Payne v. Railroad, 136 Mo. 562; Payne v. Railroad, 129 Mo. 405; Spillane v. Railroad, 135 Mo. 414; Ridenhour v. Car Co., 102 Mo. 287; Casey v. City, 163 Mass. 507; Masser v. Railroad, 68 Iowa 602; Reynolds v. Railroad, 58 N.Y. 249; Wendell v. Railroad, 91 N.Y. 420; Tucker v. Railroad, 124 N.Y. 308; Nagle v. Railroad, 88 Pa. St. 35; Streets v. Railroad, 54 N. J. Law, 518; Egley v. Railroad, 2 Washington, 407; Henderson v. Railroad, 74 N.W. 525; Hayes v. Norcross, 162 Mass. 546; Sewell v. Railroad, 50 N.E. 541. (3) The cinder pile was not the proximate cause of the accident, and such being the case, plaintiff can not recover. Stanley v. Railroad, 114 Mo. 606; Nagel v. Railroad, 75 Mo. 661; Hoag v. Railroad, 85 Pa. St. 293; Railroad v. Bigham, 90 Tex. 223; Bleid v. Railroad, 57 N.W. 117; Desenreiter v. Company, 72 N.W. 735. (4) The trial court erred in giving instruction number 2 as asked by plaintiff. (a) The law, without any special license from the city, gave defendants the right to place the cinders in the street for their contemplated use, provided such occupation of the street was not unreasonably prolonged. Clair v. Fry, 8 Ohio St. 358; People v. Cunningham, 1 Denio 524; Cowan v. Railroad, 48 N.W. 166. (b) Where a party asks an instruction covering the whole case (as here), he must not so frame it as to exclude points covered by the evidence of his adversary. Clark v. Hammerle, 27 Mo. 55; Fitzgerald v. Hayward, 50 Mo. 523; Mansur v. Botts, 80 Mo. 657; Bunyan v. Railroad, 127 Mo. 22; Quirk v. Railroad, 126 Mo. 279; Ellis v. Wagner, 24 Mo.App. 407. (5) Plaintiff's petition was fatally defective in not charging the unreasonable prolongation of the use of the street with the cinders, and the motion in arrest of judgment was for that reason well taken. Cowan v. Railroad, 48 N.W. 166. (a) Plaintiff's instruction number 3, defining ordinary care, is likewise erroneous in the use of the concluding words, "in view of all the circumstances in evidence." The objectionable terms referred to all the evidence in the case, both documentary and oral, hence afforded the jury no rule or guide in determining the meaning of the term ordinary care, and was misleading. Cohn v. Kansas City, 108 Mo. 37. (b) So plaintiff's instruction number 3 (that if the jury found plaintiff to be of immature years and that he had not the capacity of an adult, he was not guilty of contributory negligence if he exercised the care, reasonably to be expected of one of his age and capacity) ought not to have been given under the rulings of this court, it clearly appearing from the evidence that plaintiff was a bright, smart boy, accustomed to go away from home by himself, that he was familiar with trains and the danger incident to them and had been so warned by his mother. Payne v. Railroad, 136 Mo. 562; Payne v. Railroad, 129 Mo. 405; Spillane v. Railroad, 135 Mo. 414. (6) "Where from the evidence there is no doubt as to the boy's capacity to know and avoid the danger in the particular case, the court should, as a matter of law, determine the question, otherwise it should be referred to the jury." Payne v. Railroad, 129 Mo. 416; Hayes v. Norcross, 166 Mass. 546. (7) "While he is only bound to show that he exercised such care as ordinary boys of his age and intelligence are accustomed to exercise under like circumstances, the standard is the conduct of boys who are ordinarily careful." Hayes v. Norcross, 162 Mass. 548. (8) The plaintiff having brought suit on statutory or ordinance negligence, should not have been permitted to recover for common-law negligence. The common-law negligence was a new and different cause of action, and if recovery was at all permissible for it, such could have been the case only on an amended petition. Hansberger v. Railroad, 43 Mo. 196; Holliday v. Railroad, 21 Mo.App. 660; City of Kansas v. Hart, 57 P. 939; Railroad v. Wyler, 158 U.S. 285.

Ellison & Turpin and Frank Hagerman for respondent.

OPINION

Page 875

[161 Mo. 416] ROBINSON, J.

This action is brought by the plaintiff, Otto Anderson, a minor, by his next friend, against the Union Terminal Railroad company and the Kansas City Suburban Belt Railroad company, for personal injuries received by him on December 7, 1895, on Ohio avenue between Wood street and Armstrong avenue, in Kansas City, Kansas. The injury, it is claimed, was occasioned through the alleged negligence of defendants in placing upon and maintaining in said street a pile of cinders and ashes. The cause was tried before a jury, and plaintiff recovered a judgment of $ 6,500. From this judgment defendants appealed.

The defendants answer separately; their answers, however, set up the same defenses. After admitting the incorporation of defendants and generally denying the other allegations of the petition, the answers averred in substance: first, that the track was laid under ordinance 2164, of Kansas City, Kansas, that it was new, unfinished and incomplete and necessary to be ballasted and surfaced, and to accomplish such purpose, the Union Terminal Railroad company, a short time before the injury in question, caused to be scattered beside and along the track on Ohio avenue, cinders which were afterward used for ballasting and surfacing same, but that the same at no time constituted an obstruction to travel; second, the plaintiff was guilty of contributory negligence, in that he negligently approached so near the track, without looking to see, or listening to hear, whether the train was approaching; [161 Mo. 417] third, that plaintiff's injuries were caused by his attempt to climb upon a moving train, in violation of ordinance 54, prohibiting such acts. The reply was a general denial of the new matter set forth in the answer.

Briefly stated, the records present substantially the following case:

The Terminal company constructed and owned a railroad track running at grade, east and west, in the center of Ohio avenue in Kansas City, Kansas. A double-track cable street railway was operated upon James street, which runs north and south, crossing Ohio avenue at right angles. The cable cars crossed the Terminal

Page 876

company's track at grade, about every two minutes. The next parallel street west of James is Wood, or First street, upon which was operated at grade, the tracks of the Kansas City, Northwestern and Chicago, Great Western railroads. The next parallel street to Wood was Armstrong avenue, or Second street. Between Armstrong avenue and Wood street, the terminal company maintains a track on the south side of the street. The Suburban company was organized on July 13, 1892, by a consolidation, under the laws of this State, of the Consolidated Terminal Railway company, and the Kansas City Suburban Belt Railway Company.

Prior to the consolidation, however, the Terminal company leased its road to the Consolidated Terminal Railway Company, and the latter agreed to maintain and operate the same. The evidence discloses that the railroad in question was constructed and put in operation in 1892 or 1893. The ordinance, by virtue of which defendants occupied the street with a railroad, contained a grant to the Terminal company...

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