Erwin v. St. Louis, I. M. & S. Ry. Co.

Decision Date12 November 1888
Citation96 Mo. 290,9 S.W. 577
CourtMissouri Supreme Court
PartiesERWIN v. ST. LOUIS, I. M. & S. RY. CO.

Plaintiff's intestate, a boy 11 years old, was killed by defendant's train, while coasting in a street of the city of St. Louis. The court charged that, if deceased did not possess the discretion of an adult at the time of the accident, the jury should consider that fact in deciding whether or not he was guilty of contributory negligence. Held, that the instruction was misleading, and tended to give the jury the impression that, as plaintiff was only 11 years old, he could not be guilty of contributory negligence at all.

3. SAME — COMMON RIGHT TO USE STREET.

An instruction, requested by defendant, that unless its employes in charge of the train failed to make use of the means and appliances in their power to prevent the accident after they saw the danger, the jury should find for defendant, was properly refused. That doctrine applies where the person injured was a trespasser on the track, and not where both the company and the public have a right to use the street.

Appeal from St. Louis circuit court; DANIEL DILLON, Judge.

Action for negligent killing, brought by Caroline Erwin against the St. Louis, Iron Mountain & Southern Railway Company. Verdict and judgment for plaintiff, and defendant appeals.

Bennett Pike, for appellant. Henry Boemler, for respondent.

BLACK, J.

A train of the defendant's cars, consisting of a locomotive and three freight cars, ran over and killed the plaintiff's son, a lad between eleven and twelve years of age, in the corporate limits of the city of St. Louis. This is a suit by the mother, the father being dead, to recover the statutory penalty of $5,000. The cause of action stated in the petition is the negligent violation of ordinance No. 10,305, in this: that the train was moving at a greater rate of speed than six miles per hour; that the bell on the engine was not sounded; and that, though the train was backing, no man was stationed on the car at the end of the train furthest from the engine, to give danger signals. The defendant has a track running north and south on and along Front street, or the levee, as variously called in the record. Locust street runs east and west, and on this street, from Main street to the levee, a distance of about 250 feet, there is a steep down grade. At the time of the accident, the boy was coasting down this grade, and was run over by the foremost of the three freight cars, as they were being pushed northward on the track by an engine attached to the south end of the train. The evidence for the plaintiff, save that of one witness, tends to show that the train was moving at the rate of 8 to 12 miles an hour; that there was no man on the car furthest from the engine; and that the bell was not sounded. The plaintiff's evidence also shows that this and another boy were going down the hill at a very rapid rate; that the other boy was sitting upon his sled, and as soon as he saw the train, and just before he reached it, he threw himself off on the ground; that plaintiff's boy was lying down with his stomach on the sled, and just as he ran on the track the front car truck ran over him. The cross-examination of the engineer, who was called by the plaintiff, and the evidence of the fireman, the switch foreman, and a brakeman, all of whom were with the train, is to the effect that the cars were moving at a rate of speed not exceeding three miles an hour, that the fireman was ringing the bell, and that there was a brakeman on the third car, the one furthest from the engine. These witnesses say there was snow and ice on the track, so that they could not go fast; and one of the witnesses says he was, at the time of the accident, walking on the track in advance of the train.

The first contention of the appellant is that an instruction asked at the close of the plaintiff's evidence, to the effect that the plaintiff could not recover, should have been given. The plaintiff insists that defendant waived this request by putting in its evidence. The defendant by putting in its evidence, after its request for such an instruction had been made and overruled, took the chances of curing...

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