Baxter v. St. Louis Transit Company
| Citation | 78 S.W. 70,103 Mo.App. 597 |
| Parties | BAXTER, Respondent, v. ST. LOUIS TRANSIT COMPANY, Appellant |
| Decision Date | 15 December 1903 |
| Court | Court of Appeal of Missouri (US) |
Appeal from St. Louis City Circuit Court.--Hon. D. G. Taylor, Judge.
Judgment affirmed.
Boyle Priest & Lehmann, and George W. Easley for appellant.
(1) The demurrer to the evidence should have been sustained. It is undisputed that had the plaintiff's son, or his fellow-servant Davis, looked or listened, they could have seen and heard the approaching car and avoided the injury. Moore v. Railway, 75 S.W. 676; Moss v. Traction Co. (S. C. Pa.), 1 Am. Neg. Rep. 520. (2) The fact that plaintiff's son testified that he looked and saw no car in the face of the undisputed physical facts of the case, has no probative force, and must be disregarded by the court. Hook v. Railway, 162 Mo. 581; Kelsey v Railroad, 129 Mo. 362; Hayden v. Railroad, 124 Mo. 573; Payne v. Railroad, 136 Mo. 575; Baker v. Railroad, 122 Mo. 589; Gurley v. Railroad, 104 Mo. 211-233; Hickman v. Railroad, 47 Mo.App. 65-73; Weaver v. Railroad, 60 Mo.App. 210; Lien v. Railway, 79 Mo.App. 480; Railway v. Smith, 86 F. 296; Railway v. Pounds, 82 F. 217. (3) The first instruction given for plaintiff submits the question to the jury of whether the plaintiff was guilty of contributory negligence. The fact being undisputed that the plaintiff did not look or listen for the approaching car, and there was no obstacle to prevent him seeing or hearing it, there was no question of fact to be submitted to the jury. It was a question of law to be decided by the court. The second instruction given for plaintiff contains the same error. Murray v. St. Louis Transit Co., 75 S.W. 611; Zimmerman v. Railroad, 71 Mo. 476. (4) The second instruction given for plaintiff is erroneous. It allows the plaintiff to recover, notwithstanding the concurring negligence of the plaintiff's son. Upon the whole evidence, both parties were negligent, and the negligence of neither without the negligence of the other would have caused the injury. In such a case there can be no recovery. Zumwalt v. Railway, 74 S.W. 1021; Hornstein v. St. Louis Transit Co., 70 S.W. 1105; Bailey's Master's Liability, 446; Cooley on Torts (2 Ed.), 812; 7 Am. and Eng. Ency. of Law (2 Ed.), 386; Murphy v. Railway, 163 Mo. 262; Watson v. Railway, 133 Mo. 250-1; Payne v. Railway, 129 Mo. 419. (5) The plaintiff's son, "was sitting upon the seat with the driver, with the same knowledge of the road, the crossing and the environments and with at least the same, if not better, opportunity of discovering the danger, as the driver possessed, and without any embarrassment in communicating the same to him," and the plaintiff's son had "no right to omit reasonable and prudent effort to see" for himself that the way was clear. He "was bound to look and listen." Brickell v. Railroad, 120 N.Y. 290, 24 N.E. 450; Miller v. Railway (Ind.), 27 N.E. 359. Almost this identical case has been passed upon by the Court of Appeals of New York, and the person riding with the driver denied any right to recover. Donnelly v. Railway, 109 N.Y. 16, 15 N.E. 733; Griffith v Railway, 44 F. 574; 1 Shear. & Redf. on Neg. (5 Ed.), sec. 66a, note 1; Stafford v. Oskaloosa, 57 Ia. 749; Miner v. Railroad, 153 Mass. 398; Shear. & Redf. on Neg. (5 Ed.), sec. 65. (6) The fourth instruction given for plaintiff was erroneous. It allows the plaintiff to recover for the effects of the second fracture of the son's leg. There was no causal connection between the first and the second injury. The second fracture of the leg was not the natural, proximate result of the negligence charged against the defendant. Without such causal, proximate and natural result there can be no recovery. Cooley on Torts (2 Ed.), p. 74; Daugherty v. Railroad, 19 Mo.App. 418; Headley v. Transf. Co., 115 Mass. 308; Kincaid v. Railroad, 62 Mo.App. 371; Lynn Gas. Co. v. Ins. Co., 158 Mass. 570, 20 L. R. A. 297; 33 N.E. 691; Brown v. Railroad, 20 Mo.App. 222; Railroad v. Johnson, 92 Ala. 204; 8 Am. Neg., Cas. 13; Haley v. Railway, 21 Ia. 15; 8 Am. Neg. Cas. 236; Railroad v. Rose, 11 Neb. 177; 8 Am. Neg. Cas. 492; Railroad v. Spirk, 70 N.W. 926; 2 Am. Neg. Rep. 400; Hadley v. Boxendale, 9 Exch. 341; 2 Am. Neg. Rep. 400; Pullman Car Co. v. Barker, 4 Colo. 344; 9 Am. Neg. Cas., 131; Hobbs v. Railroad, 10 L. R. Q. B. 111; Sheffer v. Railroad, 105 U.S. 252; Siekinger v. Mfg. Co., 129 Mo. 590; 1 Chitty on Plead., 388; Butler v. Kent, 19 Johns. 228. (7) When the injured party has the right to control the conduct of the party whose negligence caused or contributed to his injury, the "identification" was complete and the negligence imputed. Becke v. Railroad, 102 Mo. 550; Dickson v. Railroad, 104 Mo. 504; O'Rourke v. Railway, 142 Mo. 352; Borough of Carlisle v. Brisbane, 113 Pa. St. 552; 1 Thompson on Negligence (2 Ed.), sec. 502, note 22; 2 Thompson on Negligence (2 Ed.), sec. 1621. The following cases were decided in the absence of evidence showing that plaintiff had any control over the driver, against the imputability of the negligence. Little v. Hackett, 116 U.S. 366; Follman v. City of Mankato, 29 N.W. 317 (Minn.); Robinson v. Railroad, 66 N.Y. 11 (23 Am. Rep. 1); 1 Shearman and Redfield on Negligence (2 Ed.), sec. 66a; Smith v. Railroad, 32 A. 967; Railroad v. McLeod, 29 South (Miss). 76; Brannen v. Railroad, 115 Ind. 115 (17 N.E. 202); Meenagh v. Buckmaster, 50 N.Y.S. 85; Bush v. Railroad, 62 Kan. 709 (64 P. 624); Dean v. Railroad, 18 A. 718; Township of Crescent v. Anderson, 8 A. (Pa.) 381; Hoag v. Railroad, 111 N.Y. 199 (18 N.E. 648); Roach v. Railroad, 21 S. E. (Ga.) 67; Koehler v. Railroad, 44 F. 574; Aurelius v. Railroad, 49 N. E. (Ind.) 857; Slater v. Railroad, 32 N. W. (Ia.) 264; Miller v. Railroad, 27 N. E. (Ind.) 339; Railroad v. Boyts, 45 N. E. (Ind.) 812; Brickell v. Railroad, 24 N. E. (N. Y.) 449.
James M. Sutherland for respondent.
(1) The cases cited in defendant's brief in support of his first point declare the law of this State, viz.: That stepping directly in front of an approaching train is such gross carelessness as to preclude a recovery. The facts and circumstances of this case however preclude the application of those cases. Klockenbrink v. Railway, 81 Mo.App. 351; McAndrews v. Railway, 83 Mo.App. 233; O'Keefe v. Railway, 81 Mo.App. 386; Cooney v. Southern Electric, 80 Mo.App. 226; Morgan v. Railway, 159 Mo. 262; McAndrews v. Railway, 98 Mo.App. 97; Hutchinson v. Railway, 88 Mo.App. 376; Edwards v. Railway, 94 Mo.App. 91; Meyers v. Transit Co., by St. Louis Court of Appeals, 73 S.W. 379. (2) In other criticisms under No. 4 where counsel contend that any negligence on the part of the driver was imputable to plaintiff's son, does not appear to receive judicial support. The law on this question has long since been settled in this jurisdiction, hence the foreign cases cited by counsel may make interesting and useful reading, but can not go the length of undermining established law, more especially when a change would work no improvement. Dickson v. Railway, 104 Mo. 491; Becke v. Railroad, 102 Mo. 544; Land Co. v. Mingea, 89 Ala. 521; Borough of Carlisle v. Brishbane, 113 Pa. St. 552; Mills v. Armstrong, L. R. 13, App. case 1; Thorogood v. Bryan, 65 Eng. C. L. Rep., 8 M. G. & S. 114; Hunt v. Railroad, 14 Mo.App. 160; Keitel v. Railroad, 28 Mo.App. 657.
Plaintiff is the father of Arthur Baxter, a minor. The suit is to recover damages for injuries to the son caused, as alleged, by the negligence of the defendant's servants in the management and operation of one of its street cars on Arsenal street, in the city of St. Louis. The petition alleges, and the evidence shows, that on August 27, 1901, Arthur Baxter, then twelve years old, was in the employ of Isaac Davis, an ice dealer; that the boy's duties were to go on the ice wagon and to carry ice from the wagon to such houses as the driver of the wagon should direct; that on the above named day, the boy was on the seat of the ice wagon with the driver, Albert Davis, travelling west on the north side of Arsenal street; that there are two street railway tracks in the street, cars going west occupying the north track; that the ice wagon was being driven near the north rail of the north track; that when it had passed about one hundred and fifty feet beyond where Spring avenue crosses Arsenal street, a car running west on the north track struck the hub of the rear wheel of the wagon with such force as to throw the boy and the driver out into the street; the boy fell to the north in front of the wagon and the wheel of the wagon passed over his left leg and broke it above the knee, causing a compound fracture from which he has not, and never can recover.
Various contentions for a reversal of the judgment are made by the appellant company. These we will take up in the order in which we find them in the brief of counsel.
1. It is insisted that appellant's instruction (asked and refused) that under the evidence offered by plaintiff he was not entitled to recover, should have been given. Plaintiff's evidence tends to show that the bed of the ice wagon on which he was travelling was constructed as such wagons usually are, i. e.; with a canvas covered bed, a seat in front for the driver, the back of which closed the entire front of the covered part of the wagon with a half-moon shaped hole in the back of the seat to enable the driver to look behind him; that the curtain on the rear end of this wagon was old and torn into strips so that ordinarily one on the seat could, by looking through the moon hole see the street from the rear of the wagon; that in the forenoon of the day of the accident, the wagon turned into Arsenal street from Grand avenue...
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