Albert v. St. Louis Electric Terminal Railway Co.

• Decision Date: 02 November 1915
• Citation: 179 S.W. 955,192 Mo.App. 665
• Parties: MARY ALBERT, Respondent, v. ST. LOUIS ELECTRIC TERMINAL RAILWAY COMPANY, Appellant
• Court: Missouri Court of Appeals

179 S.W. 955

192 Mo.App. 665

MARY ALBERT, Respondent, v. ST. LOUIS ELECTRIC TERMINAL RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

November 2, 1915

Appeal from St. Louis City Circuit Court.--Hon. Rhodes E. Cave Judge.

AFFIRMED.

Judgment affirmed.

Jones Hocker, Hawes & Angert and Anderson, Gilbert & Levi for appellant.

(1) The court erred in overruling the challenge to juror Byrne. Carroll v. Railroad, 157 Mo.App. 260; Heidbrink v Railroad, 133 Mo.App. 41; Theobald v. Tr. Co., 191 Mo. 428. (2) The court erred in refusing to give the demurrer to the evidence at the close of plaintiff's case, because the evidence shows Joseph Albert was guilty of negligence in permitting Lillie Albert to go upon the street. A parent is bound to use care in looking after small children and if the child is negligently permitted to get into a dangerous location no recovery can be had for its death. Senn v. Railroad Co., 124 Mo. 629; Lynch v Railroad Co., 112 Mo. 439, 440; Whitehead v. Railroad Co., 22 Mo.App. 60; Koons v. Railroad Co., 65 Mo. 592, 596. Decisions from other States are to the same effect and hold that permitting children of tender years to go upon railway tracks or into danger precludes recovery by the parents. Smith v. Railroad, 92 Pa. St. 450; Vinnette v. Railroad, 47 Wash. 320; Stamps v. Newton County, 68 S.E. 947; Railroad v. Grable, 88 Ill. 442; Railroad v. Snyder, 24 Ohio St. 670. (3) The court erred in giving plaintiff's first instruction. This instruction submits an assignment of negligence of which there is no proof. The instruction permits a recovery for failure to stop the car in the shortest space possible after Lillie Albert was on the track and there is no evidence that the car could have been stopped after she was on the track.

The instruction tells the jury if the motorman "could have seen that as she so approached and went upon the track she was in danger of injury from said car, and thereafter, by stopping said car in the shortest time and space possible, etc., could have avoided striking the child, and the motorman negligently failed to do so, to find for plaintiffs." There is no evidence that the motorman could have stopped the car after the child went upon the track. The evidence is that the child ran upon the track when the car was three or four feet away. Although the petition may be broad enough, where the evidence is narrower than the petition, the instructions must be limited to the evidence, and, if they are not so limited, are erroneous. Hales v. Raines, 162 Mo.App. 46; Miller v. United Rys. Co., 155 Mo.App. 528; Mulderig v. Railroad, 116 Mo.App. 655; Lauff v. Carpet Co., 171 S.W. 986. (4) The court erred in giving plaintiff's instruction on the measure of damages. This instruction directs the jury to assess plaintiff's damages at $ 2,000 to $ 10,000, but furnishes no guide whatever by which the jury is to determine the amount above $ 2,000. Such a direction amounts to a roving commission and is erroneous. Hawes v. Stock Yards Co., 103 Mo. 60; Schaub v. Railroad, 106 Mo. 74; Calcaterra v. Iovaldi, 123 Mo.App. 354; Boyd v. Railroad, 249 Mo. 110. (5) Instruction 1 conflicts with the other instructions and confuses the jury as to what is negligence. Instruction 6 defines negligence as the lack of ordinary care, while instruction one requires a vigilant watch and a stop in the shortest time and space possible in the first part and in the concluding part directs the jury to find for plaintiff if the defendant "negligently failed to do so." To say that one failed to "exercise ordinary care, to maintain a vigilant watch and stop in the shortest time and space possible" is an absurdity, for ordinarily is inconsistent with and conflicts with "vigilant watch" and "shortest time and space possible". These terms embody the highest degree of care. From this no one can tell just what the court meant by negligence. Such instructions are erroneous. Gardner v. Railroad Co., 223 Mo. 389, 417. (6) The verdict is grossly excessive. Baxter v. Transit Co., 103 Mo.App. 612.

S P. Bond, for respondent.

(1) The trial court was right in overruling defendant's challenge to juror Byrne on his voir dire. A juror is not disqualified unless his bias, prejudice, or ill-will is so great as to influence his mind or warp his judgment. And of this the trial court is the best judge, whose finding should not be set aside unless clearly and manifestly against the weight of the evidence. Carroll v. Railroad Co., 157 Mo.App 247; Heidbrink v. Railroad, 133 Mo.App. 40; Theobold v. Transit Co., 191 Mo. 428; State ex rel. v. Cunningham, 100 Mo. 388; Sec. 7283, R. S. 1909; McCarthy v. Railroad, 92 Mo. 536; State v. Rasco, 239 Mo. 535; Commonwealth v. Brown, 9 Am. St. rep. 736; Montgomery v. Railroad, 90 Mo. 451; Coppersmith v. Railroad, 51 Mo.App. 357; McManama v. Railroad, 175 Mo.App. 43, 46, 51; McCarthy v. Railroad 92 Mo. 536; Keegan v. Kavanaugh, 62 Mo. 230; Hudson v. Railroad 53 Mo. 35. (2) The court did right in refusing the demurrer to the evidence at the close of the plaintiff's case, and at the close of the entire case. The evidence is ample and there was no plea of contributory negligence on the part of plaintiff, and hence the defense of contributory negligence was and is not available as a defense. The plaintiffs are entitled to recover in this case if the defendant's motorman on its car saw or, by the exercise of a vigilant watch for persons on foot, could have seen plaintiffs' infant daughter on or approaching defendant's street car track and in danger of being injured by said car and thereafter could have adverted injury to plaintiffs' daughter by stopping said car within the shortest time and space possible under the circumstances with the means and appliances at hand and consistent with the safety to said car and its passengers. Hoverka v. Transit Co., 191 Mo. 453; Burley v. Transit Co., 124 Mo.App. 729; O'Faherty v. Railroad, 45 Mo. 70; Kelly v. Railroad, 75 Mo. 139; Frick v. Railroad, 75 Mo. 595; Farris v. Railroad, 80 Mo. 325; Welsh v. Railroad, 81 Mo. 466; Reilly v. Railroad, 94 Mo. 600; Dunkman v. Railroad, 95 Mo. 232; Jennings v. Railroad, 99 Mo. 394; Rosenkranz v. Railroad, 108 Mo. 9; Senn v. Railroad, 108 Mo. 142; Humbird v. Railroad, 110 Mo. 76; Wagner Gdn. v. Met. St. Ry. Co., 160 Mo.App. 334; Czezewska v. Benton-Bellefontaine Ry. Co., 121 Mo. 201; Cytron v. Transit Co., 205 Mo. 692. (3) There is ample evidence in support of plaintiff's first instruction, as we shall point out specially in our point 3. To have refused it would have been equivalent to sustaining the demurrer to the evidence. There is ample evidence to show the motorman could have stopped the car before running over the plaintiffs' infant daughter, and expert evidence is introduced to prove this. Burleigh v. Transit Co., 124 Mo.App. 729; Czezewska v. Benton-Bellefountaine Ry. Co., 121 Mo. 201; Hoverka v. Transit Co., 191 Mo. 441; Wise v. St. Louis Transit Co., 198 Mo. 546. Contributory negligence is a matter of defense and need not be alleged or proved by plaintiff. Petty v. Railroad Co., 88 Mo. 306; Thorpe v. Mo. Pac. Ry. Co., 89 Mo. 650, O'Connor v. Mo. Pac. Ry. Co., 94 Mo. 150; Donavan v. R. R. Co., 89 Mo. 147; Parsons v. Railroad Co., 94 Mo. 286. In cases where the plea of contributory negligence is pleaded as a defense, and notwithstanding that a parent may be guilty of negligence in allowing his infant child to go upon the street, yet if the motorman could have prevented the injury by due caution, the defendant is liable. If contributory negligence were set up as a defense, the last chance doctrine would apply in this State in a case like this, as in other cases. Farris v. Railroad, 80 Mo. 319; Czezewska v. Railroad, 121 Mo. 201; O'Flaherty v. Union Railway Co., 45 Mo. 70. (4) The court did not err in giving the plaintiff's instruction No. 2, on the measure of damages. Dudley v. Railroad, 167 Mo.App. 647; Baldwin v. Harvey, 177 S.W. 1087; Harding v. Mo. Pac. Ry. Co., 248 Mo. 663; Johnson v. Traction Co., 178 Mo.App. 445; Maier v. Railroad, 176 Mo.App. 29, 36; Compton v. Railroad, 165 Mo.App. 287; Browning v. Railroad, 124 Mo. 155; Waddell v. Railroad, 213 Mo. 8, 20; Niehaus Admr. v. United Rys. Co., 165 Mo.App. 606. (5) The Supreme Court and the Courts of Appeals have decided, in numerous cases, that instruction No. 1, given in behalf of the plaintiff, is proper. Burleigh v. Transit Co., 124 Mo.App. 729; Hoverka v. Transit Co., 191 Mo. 441; Cytron v. Transit Co., 205 Mo. 692. (a) Defendant's instruction No. 3 is the converse of plaintiffs' instruction No. 1. (b) All of the instructions given by the court, whether for the plaintiff or defendant, must be taken and read together; and if being so read, they are consistent and not calculated to mislead the judgment, should be permitted to stand. Karl v. Railroad, 55 Mo. 476; Whalen v. Railroad, 60 Mo. 323, Reilly v. Railroad, 94 Mo. 600; Shartel v. The City of St. Joseph, 104 Mo. 114; Dickson v. Railroad, 104 Mo. 491. (6) The verdict is not excessive. Hennessy v. Brewing Co., 145 Mo. 104; O'Hara v. Gas Light Co., 131 Mo. 428; Maier v. Railroad, 176 Mo.App. 29; Lee v. Knapp & Co., 155 Mo. 616; O'Brien v. Heiman, 177 S.W. 805; Nagel v. Mo. Pac. R. Co., 75 Mo. 653; Baldwin v. Harvey, 177 S.W. 1087; Ellis v. Met. Ry. Co., 234 Mo. 657; Stumbo v. Duluth Zinc Co., 110 Mo.App. 635; Morris v. Met. St. Ry. Co., 63 A.D. 78; Twist v. City of Rochester, 37 A.D. 30; Louisville & Nashville R. R. Co. v. Connor, Admr., 9 Heiskall (Tenn.) 19; C. & A. R. R. Co. v. Becker, 84 Ill. 183; C. & N.W. Ry. Co. v. DesLauriers, 40 Ill.App. 654; Heinz, Admr. v. Railroad Co., 98 Superior Court Reports (N. Y.) 640; Pineo, Admr. v. Railroad Co., 341 Hun. (N. Y.) 180; Hooghkirk v. Delaware Hudson Canal Co., 11 Abb. N. Cas. (N....