Anderson v. Union Terminal R. Co.

• Decision Date: 11 December 1900
• Citation: 161 Mo. 411,61 S.W. 874
• Parties: ANDERSON v. UNION TERMINAL R. CO. et al.
• Court: Missouri Supreme Court

61 S.W. 874

161 Mo. 411

ANDERSON v. UNION TERMINAL R. CO. et al.

Supreme Court of Missouri, Division No. 1.

December 11, 1900.

RAILROADS — ACCIDENT ON TRACKS — CONTRIBUTORY NEGLIGENCE — PROXIMATE CAUSE — NEGLIGENCE — ACTION FOR DAMAGES — EVIDENCE — ADMISSIBILITY — HARMLESS ERROR — INSTRUCTIONS.

1. It is error, in an action against a railroad for injuries received in an accident on its tracks in a city street, to permit ordinances regulating the manner of operating such lines therein to be given in evidence, without showing that they were accepted by the company.

2. The admission of erroneous evidence in a jury case is harmless error, where the court afterwards instructs that such evidence should be disregarded.

3. Where a witness for plaintiff testifies on direct examination as to statements made by defendant, and testifies on cross-examination

as to similar statements made by plaintiff's mother and sister, the plaintiff cannot contradict such latter statements, since he made the witness his own concerning the conversation with the mother and sister.

4. Where a railroad negligently allows a pile of cinders to remain by the side of its tracks, and a boy 9 years old stumbles over it and falls under a train, without negligence on his part, the negligence of the company is the proximate cause of the accident.

5. Where a railroad company maintaining tracks in a city street, and required to maintain the street in repair for 20 years, leases its line under a contract requiring the lessee to maintain the tracks, a condition therein that the lessor renounces all duty to the public vitiates the lease; and hence the lessor is liable for injuries resulting from the negligent act of the lessee to allow an obstruction of the street.

6. Where the answer of a railroad company owning a railroad in a city street admits placing a pile of cinders in a street, which caused the injury complained of, and the evidence shows that the cinders were placed there by a lessee which operated the road for the purpose of repairing the track, but that such repairs were paid for by defendant, it is not error to refuse to sustain defendant's demurrer to the evidence based on the ground that it is not liable for the acts of the lessee.

7. Plaintiff was a boy 9 years of age, and his evidence showed that he was injured while attempting to cross a railroad track on a city street, and by falling over a pile of cinders on the tracks of the company and rolling under the train while attempting to back away from the track in order to get out of the way of a train. Plaintiff saw the train at a considerable distance before he started towards the track. Held, in consideration of the boy's age, that it was not error to submit the question of contributory negligence to the jury.

8. Where an instruction given at plaintiff's request lacks a necessary element, such error is cured by an instruction, as given at defendant's request, which supplies such element.

9. An instruction in an action against a railroad for an injury received on its tracks is not erroneous because it authorizes a recovery if defendant's negligence was the cause of the injury, though "proximate cause" is the more accurate term.

10. An instruction that negligence is the want of ordinary care, which is the care which is reasonably to be expected from an ordinarily prudent man in view of all the circumstances, is not erroneous, in not stating that the care should be the same as required of such a man under like circumstances, since there is no substantial difference in the meaning.

11. Where the evidence in an atcion against a railroad company shows that the injury complained of was caused by plaintiff falling over a pile of cinders while backing away from a train, and there is no evidence that he ever faced the cinders, it is not error to refuse to instruct that a verdict should be rendered for defendant if the cinders could have been easily seen by a boy of plaintiff's age while approaching and facing them.

12. Where the defendant in an action against a railroad company for an injury received on its tracks asks instructions submitting the question whether the plaintiff's age and capacity were sufficient to require him to do certain acts, it is not error to refuse instructions that the failure to perform such acts will prevent a recovery.

13. The refusal of requested instructions is not error, where the subjects to which they relate are fully covered by instructions given.

14. The statement by counsel for plaintiff to the jury, in an action against a railroad company for an injury on its tracks, that the defendant was a "lawbreaker from the jump," is not sufficient to warrant a reversal of a judgment for plaintiff, where all the statements made by counsel are not shown by the record.

15. A petition in an action against a railroad company for injuries received on its tracks in a city street, which alleges that the company negligently maintained a pile of cinders which made the highway unsafe and caused the injury, will authorize a recovery at common law for defendant's negligence, though it is also alleged that the latter was violating an ordinance.

Appeal from circuit court, Jackson county; J. H. Slover, Judge.

Action by Otto Anderson, by next friend, against the Union Terminal Railroad Company and another. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

Trimble & Braley, Edwin Silver, and Lathrop, Morrow, Fox & Moore, for appellants. Ellison & Turpin and Frank Hagerman, for respondent.

ROBINSON, J.

This action is brought by the plaintiff, Otto Anderson, a minor, by his next friend, against the Union Terminal Railroad Company and the Kansas City Suburban Belt Railroad Company, for personal injuries received by him on December 7, 1895, on Ohio avenue, between Wood street and Armstrong avenue, in Kansas City, Kan. The injury, it is claimed, was occasioned through the alleged negligence of defendants in placing upon and maintaining in said street a pile of cinders and ashes. The cause was tried before a jury, and plaintiff recovered a judgment of $6,500. From this judgment defendants appealed.

The defendants answered separately. Their answers, however, set up the same defenses. After admitting the incorporation of defendants, and generally denying the other allegations of the petition, the answers averred, in substance: First. That the track was laid under Ordinance 2164 of Kansas City, Kan.; that it was new, unfinished, and incomplete, and necessary to be ballasted and surfaced, and to accomplish such purpose the Union Terminal Railroad Company a short time before the injury in question caused to be scattered beside and along the track on Ohio avenue cinders, which were afterwards used for ballasting and surfacing same, but that same at no time constituted an obstruction to travel. Second. The plaintiff was guilty of contributory negligence, in that he negligently approached so near the track without looking to see or listening to hear whether the train was approaching. Third. That plaintiff's injuries were caused by his attempt to climb upon a moving train, in violation of Ordinance 54, prohibiting such acts. The reply was a general denial of the new matter set forth in the answer. Briefly stated, the records present substantially the following case: The Terminal Company constructed and owned a railroad track running at grade, east and west, in the center of Ohio avenue, in Kansas City, Kan. A double-track cable street railway was operated upon James street, which runs north and south, crossing Ohio avenue at right angles. The cable cars crossed the Terminal Company's track at grade about every two minutes. The next parallel street west of James is Wood or First street, upon which were operated, at grade, the tracks of the Kansas City, Northwestern, and Chicago Great Western Railroads. The next parallel street to Wood was Armstrong avenue, or Second street. Between Armstrong avenue and Wood street the Terminal Company maintains a track on the south side of the street. The Suburban Company was organized on July 13, 1892, by a consolidation, under the laws of this state, of the Consolidated Terminal Railway Company and the Kansas City Suburban Belt Railway Company. Prior to the consolidation, however, the Terminal Company leased its road to the Consolidated Terminal Railway Company, and the latter agreed to maintain and operate the same. The evidence discloses that the railroad in question was constructed and put in operation in 1892 or 1893. The ordinance by virtue of which defendants occupied the street with a railroad contained a grant to the Terminal Company and its assigns of the right to maintain and operate a road upon condition that the railroad company "shall plank and maintain all crossings of streets and alleys now laid out, or that may hereafter be laid out, across the tracks of said company, with three-inch oak plank, for the full width of said street and alleys, between the rails of its tracks, and for the space of three feet on the outside of the rail of its track, and also where said railway is built on Ohio avenue, said railroad shall plank the space between its tracks, and eighteen inches on either side thereof, the entire length of Ohio avenue occupied by said railroad except where said railway crosses streets and alleys, it shall be planked as aforesaid for the space of three feet on the outside of the track." It seems that this condition of the franchise was never complied with. A day or two before the accident in question the Suburban Company hauled a lot of cinders and dumped them at the side of the track on Ohio avenue, between Wood street and Armstrong avenue, and permitted them to remain in sloping piles, just as dumped from the train. Although this work was done by the Suburban Company, yet it appears that the expenses thereof were charged up to and paid by the Terminal Company. There was evidence tending to show that it...