Donoho v. Iron-Works

• Decision Date: 01 July 1879
• Citation: 7 Mo.App. 447
• Parties: JOHN DONOHO, Appellant, v. VULCAN IRON-WORKS ET AL., Respondents.
• Court: Missouri Court of Appeals

7 Mo.App. 447

JOHN DONOHO, Appellant,

v.VULCAN IRON-WORKS ET AL., Respondents.

St. Louis Court of Appeals, Missouri.

Jul. 1, 1879.

1. In an action for damages for injuring a young child, where the evidence is conflicting, and there was evidence tending to show that the careless act of the child directly caused the injury, without any negligence whatever of the defendant, an instruction that the age of the child shall be taken into consideration, and ignoring the defendant's hypothesis of fact, is properly refused.

2. What is reasonable care may depend in a great measure upon the age of the person injured.

3. An instruction that if at the time of the injury the plaintiff was using the street to play in, and not for travel, he cannot recover, is misleading and erroneous.

APPEAL from St. Louis Circuit Court.

Reversed and remanded.

A. R. TAYLOR, for appellant.

CLINE, JAMISON & DAY and LEVERETT BELL, for respondents.

LEWIS, P. J., delivered the opinion of the court.

Plaintiff, a boy eleven years of age, sues for damages on account of the falling of a bank of earth upon him in Clay Street in the city of St. Louis. The street had not been graded or paved, and the defendant Vulcan Iron-Works had for several years been obtaining sand from it by excavations which left standing the bank of earth referred to. The petition alleges that by the negligence of defendant's servants in undermining and in leaving the bank without proper safeguards, it was caused to fall, whereby the plaintiff was seriously injured. The plaintiff's testimony tended to prove that the street was used for travel, and was necessary for the convenience of the public; that on a Sunday, next after the Saturday on which defendant's employees had been excavating, the plaintiff, being on an errand for his mother, stopped to watch some boys who were playing at the foot of the bank, when the bank fell, killed one boy, and seriously injured the plaintiff.

The defendant's testimony tended to show that the bank was caused to fall by the boys digging into it, in which the plaintiff joined them; that the plaintiff, at the time, was not using the street for purposes of travel, but only as a play-ground and for his own amusement; that the street was not in a condition to be used for vehicles; and that the plaintiff had long resided in the neighborhood, and well knew the condition of the bank.

The city of St. Louis was joined as a co-defendant with the Vulcan Iron-Works. The verdict of the jury was for both defendants.

The court refused to give the following instruction, asked for by the plaintiff:--

“The court instructs the jury that, in considering the question as to whether or not plaintiff contributed by his own act to cause the injury to himself mentioned in the petition, they should take into consideration his age and discretion; and if the jury find from the evidence that plaintiff was of the age of eleven years, and did not possess the discretion of an adult or grown person at the time of the injury, then the jury should consider these facts in determining whether or not plaintiff was guilty of contributory negligence, at the time of said injury, that contributed to cause said injury.”

In view of the conflicting testimony, and the opposing theories of fact maintained by the parties touching the fall of the bank, we cannot say that there was error in the refusal of this instruction as it stands. But as the judgment must be reversed on other grounds, we think it not improper to remand the cause, with our views upon the question partially presented in the instruction.

If, as the defendants claim, the bank was left by the Vulcan Iron-Works in an entirely safe condition, and the digging into it by boys on the next day (whether the plaintiff participated or not) was the direct cause of the fall, then the age and capacity of the plaintiff are wholly immaterial to the question of the defendant's liability. If the act of an infant bring disaster upon itself, there is no more responsibility on the owner or manager of the particular instrumentality, who is innocent of negligence in its use or exposure, than there would be if the person injured were of mature years. Such is substantially the theory of the defendants in the present case. If their hypothesis of fact were to be adopted by the jury, the instruction in question would be wholly out of place. The fault lies in its too general terms, which make it alike applicable to every hypothesis of fact in the case.

The plaintiff's theory of fact appears to be that the employees of the Vulcan Iron-Works, by undermining and excavating sand, left the bank without sufficient support, so that it would be liable to fall, at any moment afterwards, from that cause alone; that the digging by the boys had no influence in causing the fall, or that, if it had any, it was utterly insignificant, and unworthy of consideration in connection with the direct and potential cause already present; that the plaintiff's contributory negligence, if any, consisted merely in his standing near the dangerous bank, or playing at its base, when the fall was manifestly imminent. With some such hypothesis as this, by way of qualification, the rule of discrimination on account of immature years would be appropriate. Negligence, whether contributory or otherwise, implies a failure of duty. There can be no failure of duty where there is an insufficiency of mental capacity to comprehend it. It would be monstrous to impute contributory negligence to a child of two years, which is crushed in the mere act of standing near to a bank in danger of falling; while the presumed experience of...