Barkley v. Missouri Pacific Railway Co.
| Decision Date | 26 November 1888 |
| Citation | 9 S.W. 793,96 Mo. 367 |
| Parties | Barkley v. The Missouri Pacific Railway Company, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. T. A. Gill, Judge.
Reversed.
Thos J. Portis and Adams & Bowles for appellant.
(1) There is no connection between the alleged negligent acts of defendant and the plaintiff's injuries, and his own evidence shows that they were not the proximate cause thereof, and the demurrer to the evidence should have been sustained. Mathiason v. Mayer, 90 Mo. 585; Stepp v. Railroad, 85 Mo. 229; Harlan v. Railroad, 65 Mo. 22; Henry v. Railroad, 76 Mo. 293; Powell v Railroad, 76 Mo. 80; Lenix v. Railroad, 76 Mo 86; Railroad v. Staley, 41 Ohio St. 118; Jackson v. Railroad, 13 Lea [Tenn.] 491; Burns v. Rolling Mill Co., 60 Wis. 541; Hatfield v. Railroad, 61 Iowa 434. (2) In this case there is such a strong preponderance of the evidence against the plaintiff that justifies the granting a new trial. It must be apparent from the record that an injustice has been done. Chase v. Debolt, 2 Gilman [Ill.] 371; Boyle v. Levings, 24 Ill. 223; Clement v. Bushway, 25 Ill. 200. (3) The plaintiff's second instruction is simply an abstract proposition, and has no application to the case at bar. The situation of plaintiff alongside of defendant's train could apprise no one of any danger he was in. The instruction is faulty in that it does not charge that defendant's servants did see plaintiff. It ignores the contributory negligence of plaintiff and of his parents pleaded. Sullivan v. Railroad, 88 Mo. 169; Hallihan v. Railroad, 71 Mo. 113; Jones v. Talbot, 4 Mo. 279; Hickman v. Griffin, 6 Mo. 37; Clay v. Railroad, 17 Mo.App. 629; Evans v. Railroad, 16 Mo.App. 522. (4) In plaintiff's fourth instruction the jury are told that if they believe that plaintiff was passing between the moving freight train and other cars standing on another track and plaintiff fell and was run over and injured, then they must find for him. There was no proof that any negligence of defendant caused him to fall. There was no proof either that defendant's employes saw plaintiff in a situation of danger. To make defendant liable where plaintiff has also been negligent, it should appear that the proximate cause of the injury was defendant's omission, after becoming aware of plaintiff's danger, to use a proper degree of care to avoid injuring him. Maher v. Railroad, 64 Mo. 276; Karle v. Railroad, 55 Mo. 484; Isabel v. Railroad, 60 Mo. 482. (5) The plaintiff's sixth instruction should not have been given. Stepp v. Railroad, 85 Mo. 232; Harlan v. Railroad, 65 Mo. 22; 1 Rorer on Railroads, 528. (6) As a matter of law it was negligent in the parents to permit plaintiff to go about the defendant's cars and trains, if he was too young to exercise any discretion, and the defendant's seventh, thirteenth and eighteenth instructions should have been given. Stillson v. Railroad, 67 Mo. 671-676; Koons v. Railroad, 65 Mo. 592; Frick v. Railroad, 65 Mo. 547; Meeks v. Railroad, 52 Cal. 602; Hatfield v. Roper, 21 Wend. 615. (7) The defendant's seventh instruction should have been given. The law does not require railroad companies to keep a watch to see if persons are attempting wrongfully to ride upon the sides of its cars. Henry v. Railroad, 76 Mo. 295; Hallihan v. Railroad, 71 Mo. 117, 118; Shaick v. Railroad, 43 N.Y. 527. (8) Instructions numbered fifteen and sixteen should have been given. There was no evidence that any of defendant's employes knew that plaintiff was clinging to one of its cars, nor of any wilful or wanton negligence whereby he was injured. And, under the facts in this case, to render the defendant liable the injury must have been an intentional one, which would be wanton. Nelson v. Railroad, 68 Mo. 593; Sweigert v. Railroad, 75 Mo. 480. (9) The court erred in giving instruction numbered three on its own motion. It is clearly not the law of this state. In it the jury were told that "if they believe that any witness had sworn falsely to any material fact, they are at liberty to disregard his entire testimony." The instruction omits the essential elements of wilfulness or knowledge, and it was manifest error to give it. Evans v. Railroad, 16 Mo.App. 522; State v. Elkins, 63 Mo. 166; Bank v. Murdock, 62 Mo. 74; State v. Brown, 64 Mo. 374; Shenuit v. Breuggestradt, 8 Mo.App. 46. The instruction should also have included the hypothesis of the knowledge of the witness as to the falsity of his testimony. See cases cited supra; Paulett v. Brown, 40 Mo. 57, and cas. cit. (10) The damages are exorbitant and grossly excessive. Railroad v. McKean, 40 Ill. 218; Building Ass'n v. Loomis, 20 Ill. 235; Railroad v. Parks, 18 Ill. 460; Railroad v. Vanatta, 21 Ill. 188; Schlincker v. Resly, 3 Scam. 483.
A. Comingo and Gates & Wallace for respondent.
(1) Whether the defendant's negligence is the proximate cause of the plaintiff's injury is a question for the jury. Farris v. Railroad, 80 Mo. 325; Dunn v. Railroad, 21 Mo.App. 188; Dougherty v. Railroad, 81 Mo. 325; Railroad v. Kellogg, 94 U.S. 469; Stark v. Lancaster, 57 N.H. 88; Lake v. Milliken, 62 Me. 240. (2) The negligence of the defendant was the proximate cause of the plaintiff's injury, and the jury were correct in so finding. Courts and law-writers have many ways of stating the question of proximate and remote cause, and have formulated a variety of rules applicable to the subject. (a) Thus if one is placed, by the negligence of another, in a place of immediate danger, real or apparent, and accidentally receives an injury in attempting to escape the danger, he has a right of action. Thompson on Neg. 1092; Coulter v. Express Co., 56 N.Y. 585; Pittsburg v. Grier, 22 Pa. St. 54; Sears v. Dennis, 105 Mass. 310; Card v. Elsworth, 65 Me. 547. (b) Or where the injury is the combined result of the negligence of the defendant and a pure accident, the defendant is liable, unless the injury would have happened without the negligence of the defendant. McDermott v. Railroad, 87 Mo. 285; Nagel v. Railroad, 75 Mo. 661; Thompson on Neg. 1085; Bassett v. City, 53 Mo. 290; Palmer v. Inhabitants, 2 Cush. 600; Titcomb v. Railroad, 12 Allen, 254; Austin v. Steamboat Co., 43 N.Y. 75. (3) If there is any evidence to support the finding of the court below, this court will not disturb the judgment. (4) Where the plaintiff has negligently placed himself in a dangerous situation, it is not necessary, in order to make the defendant liable, that he should have actually discovered the plaintiff's situation of danger in time to have avoided the injury. If, by the exercise of ordinary care, he might have discovered the situation of the plaintiff in time and thus prevented the injury, such negligence is regarded as the proximate cause, and the defendant is liable. Frick v. Railroad, 75 Mo. 595; Werner v. Railroad, 81 Mo. 368; Bergman v. Railroad, 88 Mo. 683; Scoville v. Railroad, 81 Mo. 434; Burnham v. Railroad, 56 Mo. 338; Welsh v. Railroad, 81 Mo. 466; Kelly v. Railroad, 75 Mo. 138; Donahue v. Railroad, 83 Mo. 543. (5) In imputing the negligence of the parent to the child, there is a distinction to be observed between an action by the parent for the death or the loss of the services of the child, and an action by the child to recover for its own injuries. In the latter case the negligence of the parent is no defense. Donahue v. Railroad, 83 Mo. 543; Wharton on Neg., secs. 309-312; Railroad v. Hanlon, 53 Ala. 70; Railroad v. Snyder, 18 Ohio St. 399; Railroad v. Manson, 30 Ohio St. 451; Railroad v. Ormsby, 27 Gratt. 455; Railroad v. Moore, 59 Tex. 64; Whirley v. Whiteman, 1 Head. 610; Daley v. Railroad, 26 Conn. 591; Huff v. Ames, 16 Neb. 139. (6) The damages were not excessive. The plaintiff, a sprightly boy of six, lost his right arm at the shoulder. The verdict was for seven thousand dollars. Porter v. Railroad, 71 Mo. 66; Waldhier v. Railroad, 87 Mo. 47; Blair v. Railroad, 89 Mo. 383; Drain v. Railroad, 86 Mo. 574. No complaint is made of plaintiff's instruction numbered seven. It properly defined the measure of damages. (7) It is the duty of railroad companies, in the management and operation of their trains, at public crossings in towns and villages, to exercise greater care and caution than in the country or in their private switch-yards. They must use care and caution proportionate to the danger to be apprehended. Frick v. Railroad, 75 Mo. 595; Brown v. Railroad, 50 Mo. 461; Isabel v. Railroad, 60 Mo. 475; Cooper v. Railroad, 10 West. Rep. 184; Keim v. Railroad, 90 Mo. 314; Huckshold v. Railroad, 90 Mo. 548.
OPINION
In this case the plaintiff, who is an infant (aged about six years at the time of his injury), obtained a judgment against the defendant for seven thousand dollars, from which the defendant appeals.
The petition, after averring defendant's corporate existence alleges in substance: "That the defendant, while operating its railroad by its servants, drew a train of freight cars on a side-track at one of its stations, to-wit, at the town of Greenwood, in Jackson county, so as to wholly obstruct the approach to its said station, for half an hour; that while said train was standing on said side-track, one of defendant's passenger trains arrived at said station; that plaintiff, desiring and intending to reach said depot and the platform thereat, by the usual approach thereto, attempted to cross its said track; that owing to the fact that its said approach to its said station and platform was thus obstructed by defendant's freight train which defendant had carelessly, negligently and wrongfully left standing on said side-track, plaintiff was unable to reach said depot by the usual approach thereto; that in order to reach, and for the purpose of reaching the...
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