Livingston v. Wabash Railroad Co.
| Decision Date | 10 December 1902 |
| Citation | 71 S.W. 136,170 Mo. 452 |
| Parties | LIVINGSTON et al., Appellants, v. WABASH RAILROAD COMPANY |
| Court | Missouri Supreme Court |
Appeal from Macon Circuit Court. -- Hon. Andrew Ellison, Judge.
Reversed and remanded.
Dysart & Mitchell and Charles P. Hess for appellants.
(1) The defendant's expert witness gave evidence tending to show that it was impossible for the engineer to save the child after it got upon the track. The plaintiffs on cross-examination asked these witnesses if in their opinion the engineer could have saved the child if he had seen her running on the platform in a manner indicating that she was going to run upon the track. On the objection of the defendant the court refused an answer to the question, and stated in the presence of the jury that he agreed with defendant's counsel that the engineer was not required to take notice of the child until it got upon the track. This was error. Duerst v. Stamping Co., 63 S.W. 827; Graney v. Railroad, 140 Mo. 89; Prewitt v Railroad, 134 Mo. 615; Schmidt v. Railroad, 149 Mo. 283. Defendant's first instruction is erroneous in that it ignores the actions and motions of the child while running on the platform towards the track, and in directing a verdict for the defendant if the engineer was unable to save the child after being discovered "upon the track." It also erroneously limits the consideration of the jury to the speed of the train at the time the child was struck. (2) The instruction is also contradictory in its terms. It tells the jury that although they may believe that at the time and place the child was killed, the engine was running at a rate of speed in excess of six miles an hour, the court qualifies it below with this extraordinary statement -- "and that said engine was then running not to exceed six miles an hour." The instruction is also vicious in that it singles out one particular fact, and authorizes a finding upon such fact, ignoring other and controverted facts in the case. State v. Hibler, 149 Mo. 478; State v Rutherford, 152 Mo. 124. (3) The defendant's second instruction is erroneous, for the reasons above stated, and for the further reason, that it directs a verdict for the defendant if the child got upon the track after the speed of the train had been reduced to six miles an hour, and it was then too late to save its life by the exercise of ordinary care. It was the duty of the engineer to be on the lookout for the child before it got upon the track. Baird v Railroad, 146 Mo. 280; Morgan v. Railroad, 159 Mo. 281. (4) Defendant's fifth, sixth and seventh instructions are bad. They are declarations of law in the abstract, and even if proper in ordinary cases, could only apply to persons of mature age and discretion. These instructions also direct a verdict for the defendant if the child suddenly ran upon the track in front of the engine, ignoring every other fact and circumstance in the case. These instructions amounted to a direction to the jury to find for defendant, as it was a conceded fact that the child did run on the track in front of the engine. It is error to single out one fact in a case, and direct a verdict upon it, when there are other controverted facts in the case. A child three and a half years old is incapable of contributory negligence. Fink v. Furnace Co., 10 Mo.App. 61; Farris v. Railroad, 80 Mo. 325; Frick v. Railroad, 75 Mo. 542. (5) The defendant's eleventh instruction is erroneous for the following reasons: (a) There was no evidence in the case to warrant an instruction based on the negligence of the mother of the child in permitting it to wander from home. (b) The instruction submits a question of law to the jury. It tells the jury to find for defendant if the mother negligently permitted the child to wander, etc., without explaining what constituted negligence on the mother's part. Goodwin v. Railroad, 75 Mo. 73; Duerst v. Stamping Co., 63 S.W. 831. The mother and aunt of the child did not know it was away from home. The aunt had given the child bread at her dining-room door about ten minutes before it was killed. There was no negligence of the mother on which to base an instruction. Rosenkranz v. Railroad, 108 Mo. 9; Reilly v. Railroad, 94 Mo. 600; Frick v. Railroad, 75 Mo. 542; Winters v. Railroad, 99 Mo. 509; State v. McLain, 159 Mo. 353; Duerst v. Stamping Co., 63 S.W. supra. The last two cited cases hold that it is error to submit a question of law to the jury, such as negligence, without defining what constitutes negligence. (6) Defendant's twelfth instruction is erroneous in that it tells the jury that the engineer was under no obligation or duty to notice the child until it got upon the track, without regard to surrounding circumstances. No matter how negligent the engineer was in failing to see the child; no matter if he saw the child on the platform and threatening to run on the track ahead of his engine; no matter how fast he was running his train; the jury are instructed to find a verdict for the defendant, if the engineer could not stop his train in time to save the child, after she was seen, or could have been seen upon the railroad track. State v. Rutherford, 152 Mo. 124; Baird v. Railroad, 146 Mo. 280; Schmidt v. Railroad, 149 Mo. 269.
Geo. S. Grover for respondent.
(1) The opinions sought to be elicited by plaintiffs from the expert witnesses were inadmissible, because the questions asked assumed that defendant's engineer was a mindreader, and that he was bound to presume, if he saw or could have seen the child running along the depot platform, towards the track, that it would not remain in a place of safety, and would rush into a place of obvious danger, where it was impossible to save its life. Boyd v. Railroad, 105 Mo. 381; Hyde v. Railroad, 110 Mo. 279; Reardon v. Railroad, 114 Mo. 405; Graney v. Railroad, 140 Mo. 89; Prewitt v. Eddy, 134 Mo. 615. (2) Whatever was omitted in defendant's first instruction, if anything, on the issue as to the perilous situation of the child, while on the depot platform, was certainly supplied by plaintiffs' instructions above quoted, and therefore plaintiffs are estopped from complaining of it here. Gordon v. Burriss, 153 Mo. 223. (3) The engineer did not see the child, and never saw it, for two excellent reasons: (a) Because, as he came by the depot, he was doing his utmost to slacken the speed of his engine, in order to save the lives of three reckless young men, who were risking theirs in an indefensible experiment, on the south part of the depot platform. It was the engineer's first duty to save the lives of those young men if he could, and as he did. Nor is he subject to any just criticism on account of what he did, or failed to do, by reason of that effort. He was placed in a very trying situation through no fault of his. His judgment of what was best to be done in such an emergency necessarily governed his action. "This judgment had to be formed instantaneously; there was no time for deliberation, and whether right or wrong, his action in accordance with it can not be held negligence." Bell v. Railroad, 72 Mo. 61. (b) Because, after slacking the speed of his engine in the effort to save the young men, above described, the child, frightened by the danger-signals sounded to warn the young men, ran upon the track in front of the engine, so close to it that the engineer could not see it, and even if he had seen it, it was then impossible to stop the engine in time to save its life. These facts completely exonerated defendant. (4) The seventh instruction properly told the jury that if the child suddenly stepped upon defendant's track and was simultaneously thereafter struck and killed by one of defendant's engines, there could be no recovery. This was in exact accord with the principle announced by this court in Yancey v. Railroad, 93 Mo. 438; Boyd v. Railroad, 105 Mo. 379, and Loring v. Railroad, 128 Mo. 357.
In Banc
Plaintiff's child, three and a half years old, was run over and killed by a locomotive drawing a passenger train of defendant near its depot in the city of Macon in March, 1896, and this suit is to recover damages for the act which, plaintiffs allege, was caused by the negligence of defendant's servant in charge of the locomotive. The petition alleges three acts of negligence, viz.: running the train at a speed of more than six miles an hour in violation of a city ordinance, failure to give signals, and failure to stop the train in time to save the life of the child after its perilous condition was discovered or could have been discovered by the exercise of ordinary care on the part of the engineer; those acts were denied in the answer, which contained also a plea of contributory negligence on the part of the child and on the part of the plaintiffs in permitting the child to wander unattended upon or near the railroad track. The trial in the circuit court resulted in a verdict and judgment for the defendant, and the plaintiffs appeal.
It was shown at the trial that the defendant's railroad runs on a line north and south through the city of Macon; that just south of its depot it crosses the Hannibal and St. Joseph railroad on an elevated trestle or bridge. From the bridge northward to and beyond the point of the accident the track is straight and the view unobstructed. There is a platform sixteen feet wide along the east side of the track from the bridge to and beyond the depot and beyond the point of the accident. The depot abuts this platform on the east side. Sixty-one feet north of the depot on the same side, also abutting the platform, is a baggage room, opposite to which across the track is a trunk platform forty-seven feet long. From the bridge to the north end of the...
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