Boland v. Missouri R.R. Co.

• Decision Date: 31 October 1865
• Citation: 36 Mo. 484
• Parties: THOMAS BOLAND AND WIFE, Plaintiffs in Error, v. MISSOURI RAILROAD COMPANY, Defendant in Error.
• Court: Missouri Supreme Court

36 Mo. 484

THOMAS BOLAND AND WIFE, Plaintiffs in Error,

v.MISSOURI RAILROAD COMPANY, Defendant 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 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 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.

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 child's head struck the front point of the steps and the wheel passed over its body. The child was three or four feet from the car when I hallooed; the car was going at a very slow walk; the horses did not touch the child. I think the step of the car above struck the child; I think the corner of the step touched the child; it fell forwards straight across the track; the child at the time I hallooed was five or six feet from the driver, the driver standing at the brake at the right of the platform where the child was struck. There was a wagon standing near the corner on the south side of the street, and the driver had the brake in his hand, and seemed to fear a collision with the wagon. I can't say which went faster, the child or the car; the child went between a run and a walk, as fast as children usually toddle. I ran as far as the east end of the car, where the child was run over. If the driver had been looking towards the child at the time, I think he could have stopped the car; the other man was near me and hallooed about the same time I did. I heard the child make a noise when the car struck it; it threw its arms back when it was picked up; I can't say whether the child lived or died, for I went away after the child was picked up.”

Defendant admitted that the child was killed.

On cross-examination, the witness stated: “The wagon on the south side of Market street was standing still; I think the eyes of the driver were upon the wagon; there had been rubbish there all the spring, between the wagon and the track. It seemed to me, then, that there was danger of a collision between the wagon and the car; it stopped directly upon the child; I think the driver stopped as soon as he could; the driver had his hand on the brake all the time; the driver was going slow to prevent a collision. I don't think the driver saw the child until the car struck it; I cried out, ‘Hold on, stop!’ The driver stopped as soon as he could after he heard the cry ‘hold on;’ the speed of the car determines the distance in which it can be stopped; don't think it possible to tell how soon a car can be stopped. I saw no one attending the child; it was a little infant child just about able to walk. I don't think the child ran on the crossing; my impression is that the child did not run as fast as it could go; it toddled across the street about as fast as a little child usually goes. I can't tell how long it was going across; it might be a minute or a minute and a half before the car struck the child; I went as fast as I could, and the child was thrown down before I got to it. When I first saw the child, it was stepping from the curb-stone on the crossing; I don't think any relations appeared to claim the child; the man who took the child in his arms was a stranger to me. I don't know that it occurred to me at the time, that the driver did not stop as soon as he could; I think the driver stopped as soon as he could; I looked directly at the driver, to see if he would stop for the child; he was looking at the wagon on the south side of Market street. He had his hand on the brake with his knee against the dashboard; I saw nobody that had charge...