78 S.W. 70 (Mo.App. 1903), Baxter v. St. Louis Transit Company

Citation:78 S.W. 70, 103 Mo.App. 597
Opinion Judge:BLAND, P. J.
Party Name:BAXTER, Respondent, v. ST. LOUIS TRANSIT COMPANY, Appellant
Attorney:Boyle, Priest & Lehmann, and George W. Easley for appellant. James M. Sutherland for respondent.
Judge Panel:BLAND, P. J. Reyburn and Goode, JJ., concur.
Case Date:December 15, 1903
Court:Court of Appeals of Missouri
 
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Page 70

78 S.W. 70 (Mo.App. 1903)

103 Mo.App. 597

BAXTER, Respondent,

v.

ST. LOUIS TRANSIT COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

December 15, 1903

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...

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