Baldwin v. Harvey
| Decision Date | 14 June 1915 |
| Parties | HARRY P. BALDWIN and NELLIE F. BALDWIN, Respondents, v. FORD J. HARVEY and R. J. DUNHAM, Receivers of the METROPOLITAN STREET RAILWAY COMPANY, Appellants |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. O. A. Lucas, Judge.
AFFIRMED.
Judgment affirmed.
John H Lucas for appellants.
Atwood & Hill for respondents.
--Respondents brought suit for the death of their little son Harry P. Baldwin, Jr., nineteen months of age, who was run over and killed by one of the cars belonging to the Metropolitan Street Railway Company and being operated by its Receivers.
The charge in the petition is that, while the car was standing still, the child got on the track a few feet in front of it, and in plain view of those in charge of the car, and that while the child was thus on the track the car was negligently started and caused to run over and kill it.
The evidence in plaintiffs' behalf as to the manner of the child's death consisted of the testimony of the child's grandfather, the child's grandmother, and a neighbor lady who was sitting on her porch near by. Their testimony is to the effect that the car had stopped to discharge passengers; that, while it was standing still, the baby got on the track a few feet in front of the car and then the car started up and struck him with the fender and knocked him down and run over him and stopped just as the rear wheels reached his leg.
The appellants contended that the child did not get in front of the car but toddled on to the track at the side of the car as it passed and that only the rear wheels struck the child. They introduced evidence of several witnesses in support of this contention. Davis, on his porch two hundred and fifty feet away, says the child was out in the street about three feet from the curb and south of the track when the car started and the child went north to the tracks but passed out of his vision before it was struck. Daley, who was waiting for a car a block west, says no child was in front of the car when it started. Cordier, in an automobile about fifty feet behind the car, saw the child on the south track going diagonally northeast as the car started, but it passed out of his vision before it was killed. Three passengers on the car testified they saw the child near the south side of the track about even with or a little in front of the car after it started and, though they did not see the child struck, they felt a little jar of the rear trucks. There were two children out in the street at the time and there is room for the claim that some of these witnesses saw the other child that was not hurt and confused it with the one that was killed. The grandfather was running toward the child and looking directly at it when it got on the track as were also its grandmother and the neighbor lady Mrs. Hamilton. They were the only eyewitnesses to the striking of the child. The motorman says no child was on the track at the time he started the car. However, a passenger, who got off the car with his wife and baby, says that when the car started up, the motorman was not looking in front of him but at the witness' wife who was out to one side, she having just alighted from the front end of the car. The conductor testified he examined the car at the barn and found no blood on the front wheels but did find it on the rear wheels.
In this state of the testimony, of course, the question of whether the child was in front of the car when it was standing still and was killed by the car being started up without the motorman looking, or whether the child ran into the car from the side and was killed, was for the jury to determine. It returned a verdict for $ 2500.
Appellants insist that the case should be treated in this court as one brought under sections 5426 and 5427 instead of 5425, Revised Statutes 1909. We think it is manifest, however, that both parties treated this case in the trial as one under section 5425. This is shown by an instruction asked by respondent and also by an instruction asked by appellant. In Harding v. Missouri Pacific Railway Co., 248 Mo. 663, l. c. 670, the Supreme Court held that, if the case had been brought under sections 5426-7, error, in giving in plaintiff's behalf an instruction good only under section 5425, was invited by defendant asking an instruction, which was refused, that was applicable only to 5425. So that if plaintiff's instruction is erroneous merely because it is applicable to 5425 instead of to 5426, then that error cannot be taken advantage of since it was invited by appellants. But the requesting of these instructions by both sides of the case show that they considered and tried the case as one under section 5425. And there is nothing in the pleadings or evidence to contradict that view.
But granting that the case is under section 5425, the question then arises, is respondent's instruction on the measure of damages erroneous when applied to that section? It told the jury that in the event they found for plaintiff they would assess the damages in a sum not less than two thousand and not more than ten thousand dollars, in the discretion of the jury, "taking into consideration all the facts and circumstances in evidence in the case." There is no doubt but that the instruction is good as far as it went. But should it have gone further and told the jury that in determining the amount they would allow they could take...
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