81 S.W. 848 (Mo. 1904), Heinzle v. Metropolitan Street Ry. Co.

Citation:81 S.W. 848, 182 Mo. 528
Opinion Judge:BURGESS, J.
Attorney:John H. Lucas for appellant. O. H. Dean, C. O. French and George W. Wright for respondent.
Case Date:June 14, 1904
Court:Supreme Court of Missouri

Page 848

81 S.W. 848 (Mo. 1904)

182 Mo. 528

HEINZLE, by Next Friend,



Supreme Court of Missouri, Second Division

June 14, 1904

Appeal from Jackson Circuit Court. -- Hon. Wm. B. Teasdale, Judge.

Reversed and remanded.

John H. Lucas for appellant.

(1) The court erred in admitting incompetent evidence offered by the plaintiff, over the objections of the defendant, and in refusing to admit competent evidence offered by defendant. (a) The court erred in admitting incompetent evidence, namely: That of an alleged expert, as to distance in which the train could be stopped. Maher v. Railroad, 64 Mo. 276; Mammerberg v. Railroad, 62 Mo.App. 567; Senn v. Railroad, 108 Mo. 150; Turner v. Hoar, 114 Mo. 335; Benjamin v. Railroad, 50 Mo.App. 602; Culbertson v. Railroad, 140 Mo. 59; Ruschenberg v. Railroad, 161 Mo. 81. (b) In the matter of the speed of the cars, witnesses were not sworn to have any knowledge on the subject, and yet were permitted to give an opinion. Muth v. Railroad, 87 Mo.App. 422; Campbell v. Railroad, 75 S.W. 91. (2) Refusing to sustain demurrer to evidence, and to give peremptory instruction. (a) Failure to ring bell, and speed of car. Kelley v. Railroad, 75 Mo. 108; Holman v. Railroad, 62 Mo. 562; Molyneux v. Railroad, 81 Mo.App. 28; Thompson v. Railroad, 140 Mo. 125; Payne v. Railroad, 136 Mo. 562; Culbertson v. Railroad, 140 Mo. 35; Hanlon v. Railroad, 104 Mo. 381; Tanner v. Railroad, 161 Mo. 497; Vogg v. Railroad, 138 Mo. 172; Murray v. Railroad, 75 S.W. 611; Moore v. Railroad, 75 S.W. 672; Zumault v. Railroad, 74 S.W. 1015; Holwerson v. Railroad, 157 Mo. 245. (b) The evidence demonstrated the fact that the accident was unavoidable. Nellis, Street Railroads, pp. 273, 374; Kennedy v. Railroad, 43 Mo.App. 3; Boland v. Railroad, 36 Mo. 484; Mashek v. Railroad, 71 Mo. 276; Chilton v. Railroad, 152 Pa. St. 425; Fenton v. Railroad, 126 N.Y. 625; Flanagan v. Railroad, 163 Pa. St. 102; Tishacek v. Railroad, 110 Wis. 417; Campbell v. Railroad, 104 La. 183; Sherman v. Railroad, 72 Mo. 62; Culbertson v. Railroad, 140 Mo. 35; Hays v. Railroad, 51 Mo.App. 438; Moore v. Railroad, 75 S.W. 672; Payne v. Railroad, 136 Mo. 593; Murray v. Railroad, 75 S.W. 611; Zumault v. Railroad, 74 S.W. 1015. (3) The court erred in giving instructions asked by the plaintiff, and in giving instructions of its own motion, and in refusing instructions asked by defendant. (a) Unsupported by evidence. (b) Submit legal questions to jury. Carroll v. Campbell, 110 Mo. 557; Woods v. Campbell, 110 Mo. 572; Jordan v. Hannibal, 87 Mo. 673; Albert v. Beesel, 88 Mo. 150. (c) Misleading and enlarges issues. Bank v. Murdock, 62 Mo. 70; Wilmot v. Corrigan, 106 Mo. 548; George v. Railroad, 40 Mo.App. 433; Livingston v. Railroad, 170 Mo. 472; Donohoe v. Railroad, 83 Mo. 560; Chitty v. Railroad, 148 Mo. 73; Waddingham v. Hulett, 92 Mo. 528; Wolfe v. Supreme Lodge, 160 Mo. 686. (4) Because the court erred in overruling the motion of the defendant for a new trial. The verdict is against the law as declared by the court, against the evidence and is excessive and the result of passion and prejudice. (a) Cohn v. Kansas City, 108 Mo. 387; Powell v. Railroad, 76 Mo. 80; Lenix v. Railroad, 76 Mo. 86; Payne v. Railroad, 136 Mo. 562; Hunt v. Railroad, 89 Mo. 607. (b) Spohn v. Railroad, 87 Mo. 84; Baker v. Stonebreaker, 36 Mo. 338; Cook v. Railroad, 94 Mo.App. 420. (5) The jury were guilty of misconduct, and the verdict was the result of speculation and chance. Lawyer v. Railroad, 37 Mo. 264.

O. H. Dean, C. O. French and George W. Wright for respondent.

(1) Considering the physical facts and the surroundings which were well known to defendant's motorman, it became his duty to keep a vigilant lookout for children, to keep his car under control, to modify the speed, to sound an alarm, and, if necessary, to stop his car before striking the plaintiff. Thompson v. Railroad, 93 Mo.App. 548; Schmidt v. Railroad, 149 Mo. 288; Winters v. Railroad, 99 Mo. 509; Bunyan v. Railroad, 127 Mo. 18; Hanlon v. Railroad, 104 Mo. 389; Fielder v. Railroad, 107 Mo. 645; Hicks v. Railroad, 124 Mo. 115; Rosenkranz v. Railroad, 108 Mo. 14; Humbird v. Railroad, 110 Mo. 80. (2) Defendant's motorman breached every duty mentioned in the preceding section, namely, he failed to keep a lookout; to keep his car under control; to check its speed; or to sound an alarm. The ultimate fact of negligence was irresistible. (a) The motorman was looking north at a lady in the hotel. (b) The car was running at a rapid and unusual rate of speed. (c) No effort was made to check the speed of the car until at the time of striking the child or afterwards. (d) The employees in charge of the car negligently failed to sound the gong or other warning signal, for which neglect of duty defendant became liable for all damages resulting therefrom. Hook v. Railroad, 162 Mo. 569. (3) The servants of defendant, in charge of the car, saw or could have seen the perilous situation of plaintiff in time to have checked the speed of said car or stopped it before inflicting the injuries proven. (a) The children started near the southeast corner and ran diagonally towards the northwest corner. (b) The collision occurred between the rails of the north track in the middle of Fifth street, twenty-seven and one-half feet from the last cross-walk. (c) The child was found, after the accident, near the middle of the street. (d) The colliding car was about the middle of the block between Fourth and Fifth streets when the children started in a northwesterly direction towards the track. (e) The car stopped with the rear platform upon, or five or six feet west, of the west cross-walk of Fifth street. (f) In what distance could the car have been stopped? (4) (a) The question of the stoppage of the car applied only to the fourth and last alleged negligence. The jury could properly find upon the three preceding acts of negligence, namely, failure to keep a vigilant watch, failure to run at the usual rate of speed and failure to sound an alarm. In either event the question of ability to stop the car could have been wholly dispensed with. Defendant insists there was error in admitting the testimony of Stubbs, an expert motorman, because the hypothetical question does not contain many of the essential facts necessary to be shown before he could express himself as an expert. Kaminski v. Tudor Iron Works, 167 Mo. 466; Brown v. Hufford, 69 Mo. 305; Benjamin v. Railroad, 50 Mo.App. 602; Rogers, Exp. Ev., 70-75; Lawson, Exp. Test., 275. Under the evidence it was immaterial as to what distance this car could have been stopped, inasmuch as the motorman could have seen the child approaching, from the curve at Fourth street, a distance of 330 feet from the point of collision. Schafstette v. Railroad, 175 Mo. 142. (b) The petition charges that the train ran at a rapid and unusual rate of speed, and failed to ring bell as a warning. Covell v. Railroad, 82 Mo.App. 187; Haworth v. Railroad, 94 Mo.App. 224. (5) If the foregoing views be correct, or if upon the facts the judgment be for the right party, it is wholly useless to consider any of the alleged errors. Elbert v. Bank, 109 Mo. 445; Fitzgerald v. Barker, 96 Mo. 661; Kennedy v. Railroad, 36 Mo. 357; Doyle v. Railroad, 140 Mo. 1; Zellars v. Mo. Water Co., 92 Mo.App. 107.


[182 Mo. 533] BURGESS, J.

This is an action by plaintiff, a female between five and six years of age, for damages, caused by being run over by one of defendant's street cars in the city of Argentine, Kansas, on the 26th day of February, 1901.

The amount of damages sued for was twenty-five thousand dollars. The trial resulted in a verdict and judgment for plaintiff in the sum of nine thousand one hundred and sixty-six dollars and sixty-six cents.

Thereafter in due time defendant filed its motion for a new trial, which being overruled, it brings the case to this court by appeal for review. The accident happened at the crossing of Fifth and Metropolitan avenue.

The negligence charged in the petition is that "defendant's servants and employees in charge of said car, negligently and wrongfully approached said crossing at a rapid and unusual rate of speed, and negligently failed to ring the bell or sound an alarm as a warning to plaintiff of its approach; that defendant's agents and servants and employees in charge of said car, negligently and wrongfully failed to keep a lookout ahead for pedestrians or other obstructions in or near defendant's tracks, at said street crossing, as required by law; and, further, that defendant's servants and employees in charge of said street car, saw the dangerous and perilous position of plaintiff on or near its said tracks in time to have checked or stopped said car before striking plaintiff, or by the exercise of ordinary care could have seen the perilous position in which plaintiff was situated in time to have done so."

The following state of facts is disclosed by the record: Fourth and Fifth streets run north and south. Fifth street lies west of Fourth. Metropolitan avenue runs east and west and crosses Fifth street where the accident occurred. The defendant company owns and operates two different tracks running parallel on Metropolitan avenue, cars moving west occupying the north [182 Mo. 534] track, while cars moving east occupy the south track. A cross-walk spanned the avenue on the east side of Fifth street, from sidewalk to sidewalk, and another on the west side of Fifth street, which were 55 feet apart. The avenue is quite a steep down grade, from Fourth street to the cross-walk, on the east side of Fifth

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street, and from that point west for some distance it is practically level; the avenue otherwise was smooth and the view unobstructed.

At the southeast corner...

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