Battles v. United Rys. Co. of St. Louis

• Decision Date: 02 December 1913
• Citation: 161 S.W. 614,178 Mo. App. 596
• Parties: BATTLES et al. v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Court of Appeals

161 S.W. 614

178 Mo. A. 596

BATTLES et al. v. UNITED RYS. CO. OF ST. LOUIS.

St. Louis Court of Appeals. Missouri.

December 2, 1913.

Rehearing Denied December 16, 1913.

1. TRIAL (§ 418)—DEMURRER TO EVIDENCE— WAIVER.

Defendant by itself putting in evidence, after demurring to plaintiff's evidence, thereby waived its demurrer, so that both plaintiff's and defendant's evidence will be considered on appeal.

2. STREET RAILROADS (§ 102)—INJURIES— PROXIMATE CAUSE.

The injury must have proximately resulted from the negligence complained of to authorize a recovery, though such negligence was alleged to be in violating a speed ordinance.

3. STREET RAILROADS (§ 112)—INJURIES— PRESUMPTIONS OF NEGLIGENCE.

The fact that a street car, which caused the injury, was running at the time at a speed prohibited by ordinance does not raise the presumption that the injury was caused by such excessive speed.

4. NEGLIGENCE (§ 134)—PROXIMATE CAUSE— EVIDENCE.

A causal connection between the alleged negligence and the injury need not be shown by direct evidence, but may appear by a fair inference from the circumstances proved.

5. STREET RAILROADS (§ 114)—SUFFICIENCY OF EVIDENCE—PROXIMATE CAUSE.

Evidence in an action for the death of a small boy by being struck by a street car held not to show that the excessive speed of the car was the proximate cause of death.

6. APPEAL AND ERROR (§ 927)—REVIEW ON DEMURRER TO EVIDENCE.

In reviewing a ruling overruling a demurrer to plaintiff's evidence, plaintiff must be given the benefit of every reasonable inference fairly deducible from the evidence.

7. NEGLIGENCE (§ 134)—PROOF—PROXIMATE CAUSE.

Plaintiff must prove that the alleged negligence proximately caused the injury, by evidence which amounts to more than mere conjecture.

8. STREET RAILROADS (§ 112)—INJURIES— BURDEN OF PROOF—PROXIMATE CAUSE.

The burden was on one suing for a boy's death by being struck by a street car to show that the accident was proximately caused by the negligence alleged.

9. STREET RAILROADS (§ 81)—INJURIES—NEGLIGENCE.

The failure of a street car to give warning on approaching a crossing is negligence per se.

10. STREET RAILROADS (§ 114)—INJURIES— SUFFICIENCY OF EVIDENCE — PROXIMATE CAUSE.

Evidence in an action for the death of a small boy by being struck by a street car held to show that failure to sound a gong was not the proximate cause of the boy's death.

11. STREET RAILROADS (§ 114)—INJURIES— SUFFICIENCY OF EVIDENCE—DEFECTS IN FENDER.

Evidence in action for the death of a small boy by being struck by a street car held not to show that there was such an impact of the body against the front of the fender so as to cause it to automatically drop, and hence its failure to drop did not show that it was defective.

12. STREET RAILROADS (§ 95)—INJURIES— NEGLIGENCE—ACT IN EMERGENCY.

Where, when he saw a boy on the track, the motorman had only an instant in which to act, and immediately reversed and applied the air brakes, believing he did not have time both to

do that and lower the fender, it cannot be said that he was negligent in not lowering the fender, though he may have erred in judgment.

13. DEATH (§ 58)—PRESUMPTIONS—CONTRIBUTORY NEGLIGENCE.

The rule that it is presumed that a decedent was not guilty of contributory negligence, where no one saw the accident, would not apply where there was evidence by eyewitnesses tending to show contributory negligence.

14. NEGLIGENCE (§ 85)—CONTRIBUTORY NEGLIGENCE —INFANT.

A child of tender years may comprehend certain dangers so as to be guilty of negligence as a matter of law, and will be held negligent if he does so, or if the danger is obvious to one of his age.

15. STREET RAILROADS (§ 114)—INJURIES— ACTIONS—SUFFICIENCY OF EVIDENCE.

Evidence in an action against a street car company for the death of a small boy by being struck by a car held to show that the boy's death was caused by his own negligence.

Appeal from Circuit Court, St. Louis County; G. A. Wurdeman, Judge.

Action by Carroll W. Battles and another against the United Railways Company of St. Louis. From a judgment for plaintiffs, defendant appeals. Reversed without remand.

Boyle & Priest, of St. Louis, Kiskaddon & Kiskaddon, of Clayton, and Elmer C. Adkins, of St. Louis, for appellant. Francis M. Curlee, of St. Louis, for respondents.

ALLEN, J.

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 11 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 15 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 platforms of all saids 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 averring that the deceased was killed through his own negligence and inevitable accident.

Plaintiffs' 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 to the south along the latter street. Plaintiffs' son, a boy of nine years of age, was struck by a west-bound car on Manchester avenue, between two cross streets, viz., Sutton avenue on the west and Arthur avenue on the east, and run over and killed; his body being dragged some distance west. The evidence discloses that the car which struck him did not carry passengers, but was an "express car," which made but few stops.

Plaintiffs offered no eyewitness to the accident. That is to say, none of plaintiffs' witnesses saw the boy before he was struck by the car. Some of them heard the crunching and grinding noise made by the car when the motorman thereof attempted to stop it, their attention being attracted thereby, and saw a cloud of dust raised by the car in thus coming to a stop. And two witnesses testified to seeing the boy's hat fly in the air at this time. Other witnesses for plaintiffs only saw the car after it had stopped. The testimony of plaintiffs' witnesses, and which is undisputed, was that when the car came to a stop the boy's body was under the rear wheel of the forward truck of the car, on the south rail of the west-bound or north track; and that he was then dead, and his body frightfully mangled.

Plaintiffs' evidence went to show that the boy was struck by the car in front of the Banner Lumber Company's building, situated on the north side of Manchester avenue, and that, after striking him, the car dragged his body west until it came to a stop about opposite Mrs. Ray's restaurant, or lunch room, also situated on the north side of the street. Plaintiffs' evidence was that the distance which the car thus ran after striking the boy, before coming to a stop, was about 116 feet.

The testimony of plaintiffs' witnesses was to the effect that the car was going quite rapidly at the time that it struck the boy, though much of this was by way of conclusions or opinions of the...