Koenig v. Union Depot Ry. Co.

• Decision Date: 31 March 1903
• Parties: KOENIG et ux. v. UNION DEPOT RY. CO.
• Court: Missouri Supreme Court

73 S.W. 637

173 Mo. 698.

KOENIG et ux. v. UNION DEPOT RY. CO.

Supreme Court of Missouri, Division No. 2.

March 31, 1903.

STREET RAILWAYS—PERSONAL INJURIES — CARE REQUIRED—DUTY TO KEEP LOOKOUT— STREET CROSSINGS—RINGING BELL—RES GESTÆ—EXPERT EVIDENCE—TESTIMONY OF INTERESTED PARTY—FINANCIAL INTEREST —INSTRUCTIONS.

1. Whether the fact that a car ran about 125 feet before coming to a stop after striking a child would indicate that it had been moving faster than 10 or 12 miles an hour, or that the motorman did not apply the brakes or reverse power properly, was a question for the jury, and not for expert witnesses.

2. Evidence that immediately after the stopping of a car which ran over a child the motorman came back to where the child was, and in answer to the question, "Are you blind, to run over a child like that?" replied, "I didn't see the child; I was looking at the car coming east," was not part of the res gestæ.

3. Rev. St. 1899, § 4652, provides that "no person shall be disqualified as a witness in a civil suit by reason of his interest in the event of the same as a party or otherwise, but such interest may be shown for the purpose of affecting his credibility." Held, that the court erred in not requiring an attorney, who had testified as a witness for his client, to testify as to what financial interest he had in the suit.

4. If injury to a child results from failure of those in charge of an electric car to sound a bell or give other warning of the approach of the car to a crossing, or to keep a proper lookout for persons at that point, the company is liable, and it is immaterial that the petition does not allege negligence of such employés after becoming aware, or after they ought to have known, of the child's danger.

5. An allegation "that the servants in charge of the car failed to keep a proper lookout for persons crossing" the tracks at a certain crossing does not present the issue that such servants were negligent in failing to see, when by reasonable care they might have seen, the person injured.

6. Where there is no law directing those in charge of a street car to ring a bell on approaching a crossing, failure to do so becomes negligence only when the circumstances render the ringing of the bell necessary, and is a question for the jury.

7. The motorman of an electric car approaching a crossing is bound only to use such care as a person of ordinary prudence and caution, according to the usual and general experience of mankind would exercise in the same situation and circumstances, in respect to keeping a lookout for persons crossing the track.

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

Action by Charles A. Koenig and wife against the Union Depot Railway Company. Judgment for plaintiffs, and defendant appeals. Reversed.

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 the 8th day of May, 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 the 8th day of May, 1899, by being run over by the cars of defendant company. At that time defendant's car, proceeding westward on Arsenal street, run 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 cars 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 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 the 12th day of March, 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.

Joseph C. Dashman, a witness for plaintiff, testified that he witnessed the accident to this child; that he was at the corner of the old Holy Ghost Cemetery, where there was a hole under the fence, about 20 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, 75 or 100 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, 75 or 100 feet—he estimated about 75 or 100 feet—east of the child, and on being pressed by counsel for the plaintiff extended it to 110 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 10 or 12 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 100 or 125 feet, and came to a stop, and the motorman and conductor came back. They left the child there for a few minutes on the sidewalk. Then some man picked it up, and tried to stand it up on the street and put it by the telegraph pole, and some lady came out of a house, and said bring it into the house and put it in bed. That was the house on the north side of Arsenal street, and the first house west of Compton, next to the vacant block on the corner. The car stopped, with reference to this house, right in front of the house, with the rear or east end of the car about parallel with the door of the first house. He didn't see the fender dropped. Just before the child was struck, the motorman had his face turned to the south, looking towards where the witness was standing. Witness did not see him drop the fender, and did not notice the fender after the car came to a stop.

Mrs. Amelia Purcell was also a witness. At the time of the accident this witness was living with her mother at 3004 S. Compton avenue, about 100 or 125 feet from where the little girl was injured. She was coming along Compton avenue, intending to board the eastbound car. She was either running or walking fast, and she saw both cars coming, and didn't cross over because the west-bound car was coming on at a very high rate of speed, and she was afraid to cross, so she didn't see the west-bound car strike the little girl, and heard no warning or signal given. She was about 30 feet from the corner of Compton avenue and Arsenal street when the little girl was struck, and on the east side of Compton. There was at least the width of the street between them, because the child was struck on the west side of Compton. The car came to a very sudden jerk after it struck the child, but this witness did not notice any slackening before the child was struck. The car stopped before the first house that they took the child into. She didn't see the little girl...