79 S.W. 927 (Mo. 1904), Lee v. Jones

Citation:79 S.W. 927, 181 Mo. 291
Opinion Judge:VALLIANT, J.
Party Name:ARTHUR LEE, by Curator, v. JONES, Appellant
Attorney:Charles M. Napton for appellant; Judson & Green of counsel. A. R. Taylor for respondent.
Judge Panel:VALLIANT, J. Brace, P. J., and Robinson, J., concur; Marshall, J., concurs in the result.
Case Date:March 29, 1904
Court:Supreme Court of Missouri
 
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Page 927

79 S.W. 927 (Mo. 1904)

181 Mo. 291

ARTHUR LEE, by Curator,

v.

JONES, Appellant

Supreme Court of Missouri, First Division

March 29, 1904

Transferred from St. Louis Court of Appeals.

Reversed.

Charles M. Napton for appellant; Judson & Green of counsel.

(1) The court erred in submitting this cause to the jury: (a) Because there was no substantial evidence of negligence on the part of defendant. Payne v. Railroad, 136 Mo. 562; Schmitz v. Railroad, 46 Mo.App. 387; Pueschell v. Iron Works, 79 Mo.App. 464; Lien v. Railroad, 79 Mo.App. 479; Spohn v. Railroad, 87 Mo. 84; State v. Nelson, 118 Mo. 124; Empey v. Railroad, 45 Mo.App. 422; Lionberger v. Pohlman, 16 Mo.App. 392; Walton v. Railroad, 49 Mo.App. 620; Powell v. Railroad, 76 Mo. 84; Commissioners v. Clark, 94 U.S. 284; Avery v. Fitzgerald, 94 Mo. 207; State ex rel. v. Lindsay, 73 Mo.App. 473; Callahan v. Warne, 40 Mo. 135. (b) Because, under the evidence of this case, negligence could not be inferred from the mere fact of the collision and injury of plaintiff. Green v. St. Louis Cooperage Co., 50 Mo.App. 202; Murphy v. Railroad, 115 Mo. 111; Carvin v. St. Louis, 151 Mo. 334; Furnish v. Railroad, 102 Mo. 438; Railroad v. Crawford, 24 Ohio St. 361; Yarnell v. Railroad, 113 Mo. 570. (2) But, even if we assume for the argument that there was sufficient evidence of defendant's negligence to authorize a submission to the jury, yet plaintiff admitted that he was guilty of such contributory negligence as will bar his recovery, and the court should have peremptorily instructed the jury to find for the defendant on that ground. Hogan v. Railroad, 150 Mo. 36; Matthews v. Railroad, 142 Mo. 645; Meyer v. Railroad, 6 Mo.App. 27. (a) A boy nine years of age, of ordinary capacity for one of that age, who has been continually warned and cautioned by his mother as to the dangers of playing in the public streets, is as to such matter sui juris; and if he races down the center of a public street which is in constant use, looking backward and making no attempt to watch for other pedestrians, and is injured as a result of such carelessness, he can not recover. Barney v. Railroad, 126 Mo. 392; Spillane v. Railroad, 135 Mo. 414; Graney v. Railroad, 157 Mo. 666; Payne v. Railroad, 136 Mo. 534; Schmidt v. Railroad, 160 Mo. 58; Murray v. Railroad, 93 N.C. 92; Tucker v. Railroad, 124 N.Y. 308. (b) When he is able to fully comprehend the dangers he incurs as the result of his reckless conduct, the contributory negligence of a child of nine years is determined by the same rules and principles as is that of an adult. Payne v. Railroad, 136 Mo. 584; Messenger v. Dennie, 137 Mass. 197; Twist v. Railroad, 39 Minn. 164; McPhillips v. Railroad, 12 Daly 365; Wendell v. Railroad, 91 N.Y. 420; Ecliff v. Railroad, 64 Mich. 196; Masser v. Railroad, 68 Iowa 602; Padgitt v. Moll, 159 Mo. 143.

A. R. Taylor for respondent.

VALLIANT, J. Brace, P. J., and Robinson, J., concur; Marshall, J., concurs in the result.

OPINION

Page 928

[181 Mo. 293] VALLIANT, J.

The petition states that the plaintiff, a boy nine years old, was lawfully on Cardinal [181 Mo. 294] avenue, a public street in St. Louis, on July 20, 1895, and the defendant "negligently rode and drove a bicycle, on which he was mounted, violently and with great speed and force against the plaintiff's face and jaw," and thereby inflicted certain injuries, for which he asks damages.

The answer is a general denial, followed by a detailed statement going to show that the accident was not caused by any act of the defendant but by the negligent act of the plaintiff running against the defendant's bicycle knocking it down and throwing the defendant into the street.

Reply, general denial.

At the...

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