Welsh v. Jackson Cnty. Horse R.R. Co.

CourtUnited States State Supreme Court of Missouri
Citation81 Mo. 466
PartiesWELSH et al. v. THE JACKSON COUNTY HORSE RAILROAD COMPANY, Appellant.
Decision Date30 April 1884

Appeal from Jackson Special Law and Equity Court.--HON. R. E. COWAN, Judge.

AFFIRMED.

Wells H. Blodgett for appellant.

The defendant was entitled to have given the eighth instruction asked by it. Maschek v. Railroad Co., 71 Mo. 276; Devitt v. Railroad Co., 50 Mo. 305; Morris v. Platt, 32 Conn. 82.

Tichenor & Warner for respondent.

Only ordinary care was demanded of the driver of the car. Can it be true that the lowest degree of care is not required of a street car company which takes up one-fourth of a much traveled street in a large city, with three cars passing at one point, and that to in reference to a helpless child? Frick v. Railroad Co., 75 Mo. 609. The counsel for the defense below could not deny this, and the fifth instruction given for the defendant is fully as strong as the one given on this point at the instance of plaintiff. The young and the old, the lame and infirm are entitled to the use of the street, and more care must be exercised toward them by persons controlling or managing cars and vehicles than toward those who have better powers of motion. O'Flaherty v. W. R. Co., 45 Mo. 73; Koons v. Railroad Co., 65 Mo. 592; Monerman v. Stewarts, 71 Mo. 101; Bell v. Railroad Co., 72 Mo. 61; Frick v. Railroad Co., 75 Mo. 610. Cooley on Torts, page 683, says: “Thus a person driving rapidly along a highway where he sees boys engaged in sports, is not at liberty to assume that they will exercise the same discretion in keeping out of his way that would be exercised by others, and ordinary care demands of him that he shall take notice of their immaturity and govern his actions accordingly.” See authorities note 4, also note 3, p. 681; Railroad Co. v. Gladman, 15 Wall. 401. The defense presents this doctrine very forcibly in their instruction No. two. Defendant's No. three should not have been given, because there was no evidence upon which to base it. Koons v. Railroad Co., supra. Five instructions were given at defendant's instance, on the subject of contributory negligence, and the one refused was on the same subject, and covered by those given. When the evidence as to negligence is conflicting, the case should be submitted to the jury. Railroad Co. v. Stout, 17 Wall. 664.

RAY, J.

The plaintiffs, who are husband and wife, began this action in the special law and equity court of Jackson county, to recover of defendant the sum of $5,000 for the death of their infant son.

On the 4th day of September, 1878, after the father, who was a laboring man, had gone to his work, the child named Robert, who was under six years of age, left the premises where the plaintiffs were living, without their consent, and, in a short time afterward, was run over and killed by a street car of the defendant in the day-time upon Union Avenue, in Kansas City, and at a point about opposite the Union depot. The defendant had its street car tracks laid on Union Avenue where the child was run over. The car in charge of a driver named Patrick Scanlon, was coming up from the bottoms toward the city on the track next to the depot. At the same time two other cars, belonging to defendant, were going in the opposite direction upon the other track. A driver named Burnes was in charge on the one in front, and the witness Mahoney was in charge of the other. The material averments in the petition are to the effect that Robert Welsh, an infant, under six years of age, whilst lawfully upon Union Avenue, a public thoroughfare in Kansas City, was run over and killed by one of defendant's street cars by reason of the carelessness, negligence and disregard of duty on the part of the driver in driving the car at an unusual rate of speed, and in failing to keep a proper lookout for persons on defendant's track when, by so doing, he could have discovered said infant in time to have prevented the car from running over him.

The answer admitted the incorporation of defendant, but denied every other allegation of the petition, and further charged that the child came to its death by reason of its own carelessness and the negligence of the plaintiffs. Upon these issues the plaintiffs obtained a verdict and judgment for $5,000.

It is not necessary, we think, to set out at length, or in detail, the evidence in the case. As it stands before us for our determination, it may be assumed that there was sufficient evidence as to the conduct of the child, the rate of speed at which the car was being driven at the time, and as to and concerning the conduct of the driver, to justify and require the trial court to submit the case to the jury. Indeed this was virtually conceded, we think, upon the oral arguments before us, and is so conceded in the brief of appellant on file. At the conclusion of the testimony the court, at the request of plaintiffs, gave to the jury four instructions.

The first declared, that if by the exercise of ordinary care and prudence the driver might have seen the child and stopped the car in time to have avoided the killing; or if by the exercise of ordinary care and prudence, under the circumstances, the driver might have avoided driving over the child, plaintiffs must recover. The second told the jury that children were entitled to the use of the streets, and that more care should be exercised toward them by persons managing cars and vehicles, than toward persons of mature years, and that plaintiffs' son was only required to exercise care and prudence equal to his capacity. The third pertained to the conduct of the parents, and told the jury that they might consider the inability of plaintiffs to employ a nurse; and also whether they suffered the child to go from their home, or whether the child wandered away unknown to them. The fourth pertained only to the measure of damages.

At the request of defendant the court also gave to the jury a number of instructions.

The one numbered two, (but being the first given for defendant,) defined the duty of parents toward their children, and declared that in this case the plaintiffs should have exercised a degree of care in proportion to the helplessness and indiscretion of the child. The one numbered three also pertained to the duty of parents, and told the jury that plaintiffs could not recover if they negligently permitted their child to wander into the street, where it was killed, without negligence on the part of defendant. The fourth told the jury that it was the duty of the child to exercise care in proportion to its capacity, and that if the want of such care on the part of the child was the proximate cause...

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28 cases
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