Battles v. United Railways Company of St. Louis
| Decision Date | 02 December 1913 |
| Citation | 161 S.W. 614,178 Mo.App. 596 |
| Parties | CARROLL W. BATTLES et al., Respondents, v. UNITED RAILWAYS COMPANY OF ST LOUIS, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis County Circuit Court.--Hon. Gustavus A Wurdeman, Judge.
REVERSED.
Judgment reversed.
Boyle & Priest and T. E. Francis for appellant; J. C. Kiskaddon of counsel.
The court erred in refusing to direct a verdict for defendant for the reason that the alleged omissions of duty counted on were either unproved, did not constitute negligence, or else were not the proximate cause of the accident. (a) The alleged operation of the car at a speed in excess of the maximum rate prescribed by ordinance was not the proximate cause of the accident, inasmuch as decedent went upon the track immediately in front of the car and the collision would have been inevitable had the car been running within such maximum rate. Bluedorn v. Railroad, 121 Mo. 258; Evans Brick Co. v. Railroad, 17 Mo.App. 624; Molyneux v Railway, 81 Mo.App. 25; King v. Railroad, 211 Mo. 1; Schmidt v. Transit Co., 140 Mo.App. 182. (b) Inasmuch as there was no law or ordinance requiring a gong to be sounded and the accident did not occur at a street crossing or place where pedestrians would be expected to cross the street, the failure to sound the gong was not an act of negligence. McGauley v. Transit Co. 179 Mo. 583; Theobald v. Transit Co., 191 Mo. 395. (c) A recovery could not be predicated on the manner in which the car was equipped with a fender inasmuch as--First, there was no law or ordinance requiring the installation of such equipment, and it was not negligence at common law to fail to install such equipment; and it follows as a necessary corollary that it was not actionable negligence to fail to keep such equipment, if installed, in a state of good repair. If it was not negligence to have no fender at all, a fortiori it was not negligence to have an imperfect one. Hogan v. Railroad, 150 Mo. 36. Second, there was no showing that the fender actually installed was not as efficacious in operation as any other obtainable, or that it was not in a perfect working condition. (d) A recovery could not be predicated on the theory that the motorman could have averted the injury to decedent by lowering the fender, because the evidence shows that decedent got on the track immediately in front of the car, and the motorman, therefore, did not have time to lower the fender before decedent got under the wheels. It requires a showing of more than a mere possibility of ability to avert the accident to warrant a recovery on such a theory as this; and in this case not even a possibility was shown. White v. Railroad, 159 Mo.App. 508; McGee v. Railroad, 214 Mo. 530; Markowitz v. Railroad, 186 Mo. 350; Hawkins v. Railroad, 135 Mo.App. 524; Roenfeldt v. Railroad, 180 Mo. 567. Even if the facts would warrant a finding that decedent might not have been killed, had the fender been lowered, still a recovery could not be predicated on the failure to lower it, since the motorman earnestly and honestly did all he could to save the life of decedent, by stopping the car as quickly as possible, and if he erred in trying to stop the car, instead of lowering the fender, such error, having been committed under the stress of exciting and imminent danger, was not proof of negligence. Matthews v. Railroad, 156 Mo.App. 715; White v. Railroad, 159 Mo.App. 508.
Francis M. Curlee for respondents.
(1) There is a presumption that decedent was at the time of the accident in the exercise of ordinary care. Buesching v. St. Louis Gas Light Co., 73 Mo. 219; Schultz v. Moon, 33 Mo.App. 329; Weller v. Railroad, 120 Mo. 635; Dunlap v. Mallinckrodt Chem. Works, 159 Mo.App. 49; Schlereth v. Railroad, 96 Mo. 509; Hanlon v. Railroad, 104 Mo. 381. (2) A child of tender years can not be said as a matter of law to be guilty of contributory negligence. This is a question of fact for the jury. Holmes v. Railroad, 190 Mo. 98. (3) It is not necessary to plaintiff's case to produce an eye witness who saw the accident itself. Causal connection may be proven directly or inferentially like any other fact. Keim v. Railway, 90 Mo. 314; King v. Railroad, 211 Mo. 1; Buesching v. Gas Light Co., 73 Mo. 219; Schultz v. Moon, 33 Mo.App. 329; Schlereth v. Railroad, 96 Mo. 509; Prewitt v. Railroad, 134 Mo. 627; Hanlon v. Railway Co., 104 Mo. 381; King v. Railroad, 211 Mo. 1. (4) Defendant's evidence is not proof. Where plaintiff makes a prima-facie case, the truth of defendant's evidence is always a question for the jury. Gannon v. Laclede Gas Light Co., 145 Mo. 502. (5) Even though plaintiff does not make a prima-facie case, and defendant's demurrer to plaintiff's evidence is overruled, where defendant fails to stand on his demurrer, and introduces his evidence, the demurrer is waived and the evidence is considered as a whole. Riggs v. Railway Co., 216 Mo. 304; Klockenbrink v. Railway Co., 81 Mo.App. 351. (6) The question of whether or not due care required the ringing of a gong, in the particular circumstances, is a question of fact to be decided by the jury. Schmidt v. Railroad Co., 163 Mo. 645; Conrad v. Railway, 89 Mo.App. 391; Noll v. Transit Co., 100 Mo.App. 367; Baxter v. Transit Co., 103 Mo.App. 597; Zander v. Railroad, 206 Mo. 470; Koenig v. Union Depot Co., 173 Mo. 698; Frank v. Transit Co., 99 Mo.App. 323. (7) Under the rule of res ipsa loquitur, evidence of the usual and ordinary operation of a device, and of its failure so to operate, creates a presumption of defective construction or condition, and casts the burden of proof on the operator of the device to show its proper construction and condition. Scheurer v. Rubber Co., 227 Mo. 347; Blanton v. Dold, 109 Mo. 64; McCarty v. Railroad, 105 Mo.App. 596; Lee v. Railroad, 112 Mo.App. 372. (8) The burden of proof is on that party who has the information in his possession--Spark arrester case, Miller v. Railway Co., 90 Mo. 393.
This is an action instituted by respondents, husband and wife, for the death of their minor son, Shelby Battles, through the alleged negligence of the defendant. Plaintiffs recovered, and the defendant prosecutes the appeal.
Respondents' minor son met death by being struck and run over by one of defendant's street cars in the city of Maplewood, St. Louis county, on Manchester avenue, a public street of said city, on October 31, 1910, at about eleven o'clock a. m.
THE PLEADINGS.
The petition, which is quite lengthy, counts upon several different theories of negligence.
The first assignment of negligence charges, in substance, that the car which struck and killed deceased was being operated at the time at an "excessive, dangerous and unlawful rate of speed," and one that was negligent at common law, in view of the fact that it was being operated through a thickly populated portion of the city of Maplewood, and which was much frequented by children.
The second charge of negligence is that defendant's motorman, in charge of the car which struck and killed deceased, was negligent in failing to sound a gong or bell as the car approached and passed another car going in the opposite direction, upon an immediately adjacent and parallel track.
The third assignment of negligence charges a violation of a municipal ordinance of the city of Maplewood, in that the car which struck and killed deceased was being operated at a rate of speed in excess of fifteen miles per hour, in violation of said ordinance.
The fourth assignment of negligence charges a violation of another ordinance of said city of Maplewood, requiring street cars to be equipped with fenders "projecting from the front platform of all said cars, and designed to catch and sustain any human being who may be in the way of said car."
The fifth assignment of negligence also charges defendant with a failure to equip its cars with a fender of the design required by the municipal ordinance aforesaid, and that in lieu thereof defendant had equipped the car in question with a fender of a different character and design, describing the latter; and it is alleged that the device which defendant thus adopted was defective in design and construction, and ineffective to accomplish the results intended by the ordinance.
The sixth assignment of negligence also charges a violation of the ordinance respecting the equipment of cars with fenders; and charges that the defendant had undertaken to provide and equip its said car with a device or guard intended to accomplish the same result as was intended by said ordinance viz., to catch and sustain any person in the way of and struck by said car, but it is charged that the defendant negligently failed to keep such device or guard in working order and condition, and permitted it to become broken, defective and out of order, whereby it failed to operate and by reason whereof the deceased was drawn under the car and killed.
The seventh charge of negligence is, in substance, that the defendant's motorman in charge of the car which struck and killed deceased could have lowered the fender with which the car was equipped, by operating a certain lever, in time to have prevented the injury and killing of deceased, and negligently failed so to do.
The answer is a general denial, and a plea averred that the deceased was killed through his own negligence and inevitable accident.
PLAINTIFF'S CASE.
Manchester avenue, at and about the point where plaintiffs' son was struck and run over by defendant's car, extends east and west, the central portion of the street being, at the time occupied by double, parallel street car tracks of the defendant, which extended west to Sutton avenue where they turned...
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