Boland v. Missouri R.R. Co.

CourtUnited States State Supreme Court of Missouri
Citation36 Mo. 484
PartiesTHOMAS BOLAND AND WIFE, Plaintiffs in Error, v. MISSOURI RAILROAD COMPANY, Defendant in Error.
Decision Date31 October 1865

36 Mo. 484

THOMAS BOLAND AND WIFE, Plaintiffs in Error,

Supreme Court of Missouri.

October Term, 1865.

Error to St. Louis Circuit Court.

Hill, for plaintiffs in error.

I. The question of negligence should have been left to the jury in such

[36 Mo. 485]

a case as this. So it has been held in the case of Hulsenkamp v. Citizen's Railway Co. (34 Mo. 45, and cases there cited; 1 Hill. on Torts, p. 135, § 45, & notes.) Proof of injury to a passenger on a railroad car, is held prima facie evidence of negligence. (Zemp v. Wilmington, 9 Rich. Law, 84.)

II. It is objected by the defendant that the plaintiffs were guilty of negligence in permitting their child to go out of the house in the open air and sunshine without a nurse, or attendant. (1 Hill. on Tort, 162, § 17, et seq.) The common sympathies of mankind are endorsed in these words: “The plaintiff is only bound to exercise care and prudence equal to his capacity.”“Thus, although a child of ten years may be in the highway through the fault and negligence of his parents, yet if injured through the negligence of the defendant, he is not precluded from his redress.” (Robinson v. Cone, 22 Vt. 213; Buge v. Gardiner, 19 Conn. 507; Oldfield v. New York, &c., 3 E. D. Smith, 103; Lynch v. Nardin, 41 Eng. Com. L. 422; Adams et als. v. Wiggin's Ferry Co. 27 Mo. 95.)

The only case relied on by defendant, is Hartfield v. Roper, 21 Wend. 617, which is commented on; 1 Hill. on Torts, 166; Payne v. Smith, 4 Dana, 497. The general principle that one party cannot recover damages from another when both are in fault, or in pari delicto, has these exceptions.

1. Although there may have been negligence on the part of the plaintiff, yet unless he might by the exercise of ordinary care have avoided the consequence of the defendant's negligence, he is entitled to recover.

2. All the consequences that may flow from wrongful or negligent acts must be borne by the party guilty of them, and he is not relieved from responsibility that the consequences of the injurious act could have been prevented by the skill or care of the injured person.

3. The injured person, although in fault to some extent, may be entitled to damages for an injury which could not have been avoided by

[36 Mo. 486]

ordinary care on his part.

4. Where the negligence of the defendant is the proximate cause of the injury, but that of the plaintiff only remote, consisting of some act or omission, not occurring at the time of the injury.

5. Where a party has in his custody, or control, dangerous implements or means of injury, and negligently uses them or places them in a situation unsafe to others, and another person--although at the time even in the commission of a trespass, or otherwise somewhat in the wrong--sustains an injury. (Cook v. Champlain, 1 Denio, 91.)

These two maxims fix the responsibility of the defendant for his in jury.

Glover & Shepley, for defendant in error.

I. The plaintiff must show that injury was not occasioned by his own negligence. (Boland and wife v. Missouri R. R., 33 Mo. 311; 19 Wend, 400; 5 Carr. & P., 375; 6 id. 23; 3 id. 23; 21 Wend. 615; 2 Hall, 131; 5 C. & P. 375; 8 id. 373; 6 Hill. 592; 9 C. & P. 601; 1 Cromp. & Mee. 21; 3 Mee. & W. 244; 10 id. 546; 12 Pick. 177; 23 Conn. 441-4.)

The plaintiff must show the injury was not caused wholly or in part by his negligence. (21 Barb. 339; 5 id. 337; 13 id. 9-16; 14 id. 584; 6 Cow. 191; 23 Penn. S. R. 147; 1 Dutcher, 556-7; 12 Metc. 415; 1 E. D. Smith, 74; 12 Peck. 177; 11 East. 61; 6 Whea. 325.)

II. There was no negligence shown on the part of the defendant; none on the part of its agents. The car was moving slowly; the driver's attention was directed to the other side of the street, looking out for a threatened collision on that side, and holding his hand on the brake; most certainly the driver did not see the child, and had no right to suppose a child of two years old would be there. As soon as the alarm was given the driver stopped. There was no proof of ordinary care on the part of plaintiffs.

[36 Mo. 487]

If there was want of ordinary care on the part of plaintiffs they could not recover. The burden of proof was on them to show ordinary care. They did not show the least care. There were, then, two reasons for forbidding recovery: 1. The absence of any proof of defendant's negligence. 2. The absence of any proof of ordinary care by plaintiffs.

WAGNER, Judge, delivered the opinion of the court.

This was a suit under the statute, commenced by the plaintiffs against defendant, to recover damages for the killing of their daughter, a child aged about two years. From the record, we gather these facts: The little child, unattended, was walking across Market street, over the paved crossing, on the west side of Fifth street, one of the most public thoroughfares in the city of St. Louis, and at the same time defendant's horse car was going west over Fifth street on Market street. The child was proceeding in a fast walk and the by-standers, seeing her danger, cried aloud to the driver to stop the car; but the driver's attention being turned in another direction, he did not stop till the child was run over and killed.

C. B. Wardrop testified for the plaintiffs: “I was crossing Fifth street going west, out Market street; the horse-car was going out also: I was north of the horse-car track. I saw the little child start from the curb to go from the north-west to the south-west corner of Market and Fifth streets, on the paving across the street, and I ran toward the car as fast as I could hallooing to the driver to stop, and another man just ahead of me was hallooing, and ran towards the car; the driver's attention seemed to be called to the opposite side of the street. The car continued going on, and the...

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