73 S.W. 637 (Mo. 1903), Koenig v. Union Depot Railway Company

Citation:73 S.W. 637, 173 Mo. 698
Opinion Judge:BURGESS, J.
Party Name:KOENIG et ux. v. UNION DEPOT RAILWAY COMPANY, Appellant
Attorney:Geo. W. Easley, with Boyle, Priest & Lehmann for appellant. Lee Meriwether for respondents.
Case Date:March 31, 1903
Court:Supreme Court of Missouri
 
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Page 637

73 S.W. 637 (Mo. 1903)

173 Mo. 698

KOENIG et ux.

v.

UNION DEPOT RAILWAY COMPANY, Appellant

Supreme Court of Missouri, Second Division

March 31, 1903

Appeal from St. Louis County Circuit Court. -- Hon. R. Hirzel, Judge.

Reversed and remanded.

Geo. W. Easley, with Boyle, Priest & Lehmann for appellant.

(1) The court erred in permitting witness Montgomery to testify that certain facts assumed by him to be true "would indicate that the car was then moving at a higher rate of speed than ten or twelve miles an hour, or that the motorman didn't apply the brakes or reverse power properly at the time the accident occurred." Ferguson v. Hubbell, 97 N.Y. 507; Muff v. Railroad, 22 Mo.App. 584; Benjamin v. Railroad, 133 Mo. 289. (2) The court below erred in permitting witness Dashman to testify to the statement said to have been made by the motorman after the car had stopped, and the motorman had gone back to where the child was lying. 1 Greenleaf's Ev., sec. 113. It was not a part of the res gestae, and did not bind or affect the defendant. Adams v. Railroad, 74 Mo. 553; Fidelity, Etc., Co. v. Haines, 111 F. 337; Railroad v. O'Brien, 119 U.S. 99; 1 Greenleaf's Ev., sec. 444; Adams v. Wheeler, 97 Mass. 67. (3) The court below erred in not permitting witness Lee Meriwether to testify as to what financial interest he had in the suit. R. S. 1899, sec. 4652; Stilwell v. Patton, 108 Mo. 363. (4) The court erred in giving plaintiffs' first instruction. Sedalia Gas Light Co. v. Mercer, 48 Mo.App. 650; Elliott v. Mfg. Co., 71 Mo.App. 170; Chitty v. Railroad, 148 Mo. 175; McCarty v. Hotel Co., 144 Mo. 397; McManamee v. Railroad, 135 Mo. 440; Waldhier v. Railroad, 71 Mo. 514. (5) The court erred in giving plaintiffs' second instruction. That instruction declares as a matter of law "that it was the duty of defendant's motorman to sound his gong or bell when approaching Compton avenue." As applied to the facts of this case, the instruction is erroneous. Schmidt v. Railroad, 163 Mo. 657. (6) The court below erred in giving the fifth instruction on behalf of plaintiffs. It wrongly defined the degree of care required of defendant. It charged that the defendant was under the duty of exercising "a very high degree of vigilance." There was no circumstance offered in evidence that required anything more than ordinary or reasonable care. Schmidt v. Railroad, 149 Mo. 279; Zimmerman v. Railroad, 71 Mo. 491; Young v. Railroad, 79 Mo. 341.

Lee Meriwether for respondents.

Appellant lays great stress upon Montgomery's being permitted to testify what certain facts which had been proved (not assumed by him) would indicate, viz.: that the car, running 125 feet after striking the child, was either moving at a higher speed than twelve miles, or else the reverse power and brakes were not properly applied. It is absurd to suppose the jury was influenced by that if, as appellant assumes, they were equally competent as Montgomery to deduce correct conclusions from the facts proved, and if they were not equally competent, then the testimony was entirely proper. It is equally absurd to suppose the jury was influenced by the question whether Lee Meriwether had or had not a financial interest in the suit. Every jury in every suit knows that the attorney expects to be paid for his services. His testimony was to the effect that Miller had pointed out to him before the trial the place where the car stopped -- twenty-seven yards west of Compton. Montgomery testified to the same fact in contradiction of Miller's statement given on the trial. Now, to suppose that this jury's verdict, as to the guilt or innocence of defendant, could be influenced by any supposed financial interest of Lee Meriwether testifying upon that single point, which had been previously proved by Montgomery, requires the widest stretch of the imagination. Appellant's fourth error complained of -- that the court erred in giving plaintiffs' first instruction because not based on any allegation in the petition -- is certainly remarkable. The allegation is distinctly made in the petition. Defendant asked the court to strike it out, and now complains that the instruction is not based on any allegation in the petition. Defendant undertakes to reform plaintiffs' petition, and then demands instructions based on the reformed petition.

OPINION

[173 Mo. 702] BURGESS, J.

This is an action by plaintiffs (husband and wife) for damages for the negligent killing of their minor child, Amelia Koenig.

The petition alleges that on May 8, 1899, Amelia Koenig was struck and killed by one of defendant's street railway cars at the intersection of Arsenal street and Compton avenue, in the city of St. Louis; the incorporation of the defendant and its operation as a street car line; that said Amelia was about six years old, and that the plaintiffs were, respectively, father and mother of said Amelia.

The actionable negligence charged is:

"1. That the defendant was running its car at a rate of speed in excess of that permitted by the ordinance of the city of St. Louis.

"2. That it ran said car so rapidly that it lost control so it was beyond the power of the brakes to stop the same at the crossing of Compton avenue.

"3. That the servants of defendant in charge of said car failed to sound the bell or give other warning of the approach of the car.

"4. That the servants in charge of the car failed to keep a proper lookout for persons crossing Arsenal at Compton avenue.

"5. That the servants in charge of the car failed to lower the fender until after the deceased was struck.

"6. That the servants in charge of the car failed to apply the brake until the deceased was struck."

The answer is a general denial.

The facts briefly stated are, that Amelia Koenig, who was about six years of age at the time, was killed by the defendant, a street railway corporation, at the intersection of Arsenal street and Compton avenue in the city of St. Louis, on May 8, 1899, by being run [173 Mo. 703] over by the cars of defendant company. At that time defendant's car, proceeding westward on Arsenal street, ran upon Amelia Koenig at the crossing of the west line of Compton avenue, and struck her with such force that she died from the effects thereof in an hour or so thereafter. From Michigan avenue, the first street east of Compton avenue, to Compton avenue is a steep grade, down which defendant ran its car which caused the death of the child, with such rapidity, as plaintiff claims, as to lose control and place it beyond the power of the brakes to stop the car at crossing of Compton avenue.

It is also claimed by plaintiff that while running down said grade defendant failed to sound the bell, or give other warning of the coming of the car, and neglected to keep a proper lookout for persons crossing at Compton, and neglected

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to lower the fender, and neglected to apply the brake until Amelia had been struck. From Michigan west to Virginia, beyond Compton, there was nothing to obstruct the view, so that persons approaching Arsenal street at Compton avenue could be seen more than a block away.

Mrs. Lizzie Koenig, the mother of the child, testified that the child was born on March 12, 1893. That she was killed about two blocks away from home; that she had been from home about half an hour; that she was sent for and saw the little girl at the place of the accident. When the mother arrived the child was unconscious and died an hour or two afterwards.

The little girl who met with the accident was ordinarily bright for her age, and had been often sent out before, and nothing had ever happened to her. She was not sent out on this occasion, but was bringing something to her grandmother. She wore at the time a blue calico sunbonnet, and was going to her grandmother's, who was living on Virginia and Arsenal, about two blocks away.

[173 Mo. 704] Joseph C. Dashman, a witness for plaintiff, testified that he witnessed the accident to the child. That he was at the corner of the old Holy Ghost cemetery, where there was a hole under the fence about twenty feet west of Compton on Arsenal. The witness was standing on the south side of Arsenal, and the child was on the north side, walking east on the sidewalk towards Compton avenue -- seventy-five or a hundred feet from Compton avenue. He first saw the car that came in collision with the child about a block and a half east of where he was, on Arsenal street. When he first saw the child the car was a block away. He saw the child walking down the sidewalk. She came down the sidewalk, and in place of walking direct to the crossing -- "there is six feet of sidewalk left about three feet above the grade of the street, and there is a little slant there, and she was walking down there, and I didn't pay any attention to her, and she went up in the air." She was five or six feet from the corner when she started to walk across the street. When she stepped off of the sidewalk the car was just the other side of the east crossing of Compton avenue, the witness judged about the width of the street, seventy-five or a hundred feet -- he estimated about seventy-five or a hundred feet east of the child, and on being pressed by counsel for the plaintiff extended it to one hundred and ten feet. The witness heard no signal by the motorman, no shouting or anything. He saw the car when it struck the little girl and knocked her ten or twelve feet, and then he could not see any more. The car was between him and the child, and he saw no more of the child until the car crossed over it and the little foot was all crushed up and the blood was there. The witness then walked over there. The car ran about a hundred or a hundred and twenty-five feet, and came to a stop, and the...

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