Buckry-Ellis v. Missouri Pacific R. Co.
| Decision Date | 30 June 1911 |
| Parties | AMELIA BUCKRY-ELLIS, Respondent, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. James E. Withrow Judge.
Judgment affirmed.
R. T Railey and James F. Green for appellant.
(1) There was not sufficient evidence to support the averments of the petition, and, therefore, defendant's instruction No 2 should have been given. Watson v. Railroad, 133 Mo. 246; Boyd v. Railroad, 105 Mo. 371; Prewitt v. Eddy, 115 Mo. 283; Henze v. Railroad, 71 Mo. 639; Culhane v. Railroad, 60 N.Y. 137; Shufelt v. Railroad, 55 N.W. 1015; Ives v. Railroad, 107 N.W. 454; Horn v. Railroad, 55 A. & E. R. R. Cas. 158; Knox v. Railroad, 52 A. 91. (2) The court erred in giving plaintiff's instruction No. 6, there being no evidence whatever as to plaintiff's earning capacity. Davidson v. Transit Co., 211 Mo. 345; Smith v. Railroad, 108 Mo. 251; Slaughter v. Railroad, 116 Mo. 275; Mellor v. Railroad, 105 Mo. 462; Stoetzle v. Sweringen, 96 Mo.App. 594; Paquin v. Railroad, 90 Mo.App. 118; Coontz v. Railroad, 115 Mo. 669; O'Brien v. Loomis, 43 Mo.App. 29; Radtke v. Box Co., 229 Mo. 19; Palmer v. Railroad, 142 Mo.App. 457; Heinz v. Railroad, 143 Mo.App. 41. (3) Said instruction No. 6 not being warranted, the error in giving it was not cured by the entry of a remittitur. Slattery v. City of St. Louis, 120 Mo. 184; Smoot v. Kansas City, 194 Mo. 525; Ice Company v. Tamm, 90 Mo.App. 202; Wright v. Jacobs, 61 Mo. 19; Hunter v. City of Mexico, 49 Mo.App. 17; Koltz v. Bleckman, 46 Mo. 320; Sheedy v. Brick Works, 25 Mo.App. 527; Radtke v. Box Co., 229 Mo. 19. (4) The court erred in refusing to give defendant's instruction No. 9. (5) Plaintiff's instruction No. 5 was an unnecessary comment upon the testimony, and, therefore, should not have been given. Eckhard v. Transit Co., 190 Mo. 620; Shanahan v. Transit Co., 109 Mo.App. 228; ElyWalker v. McLoughlin, 78 Mo.App. 578; Smith v. Woodmen, 179 Mo. 119; Jones v. Jones, 57 Mo. 138; State v. Bell, 70 Mo. 633; State v. Sivils, 105 Mo. 530; State v. Rutherford, 152 Mo. 124. (6) The damages awarded are excessive and not warranted by the evidence. Nicholds v. Glass Co., 126 Mo. 55; Adams v. Railroad, 100 Mo. 555; Whalen v. Railroad, 60 Mo. 323; Hollenbeck v. Railroad, 141 Mo. 113; Furnish v. Railroad, 102 Mo. 438; Gurley v. Railroad, 104 Mo. 211; Chitty v. Railroad, 166 Mo. 443; Porter v. Railroad, 71 Mo. 66.
Williams & Rollins and A. R. Taylor for respondent.
(1) The contention under appellant's first point is, that because its witnesses testified that the bell was rung, therefore such testimony must be taken as true, though the testimony of a large number of plaintiff's witnesses, who were in a position to hear the bell, if rung, was that they did not hear any bell. This question is settled against appellant in two well-considered cases, by our Supreme Court, being the latest declarations of that court on that question. Murray v. Railroad, 176 Mo. 189; Stotler v. Railroad, 200 Mo. 138. (2) It is true that in cases where an adult is injured, that evidence should be given of what his or her earnings were, but in case of a child of six years of age, such evidence could not be given; because such a child is incapable, by nature, of earning wages. But is this a reasonable ground for slaughtering the rights of the innocent child? Not so; our Supreme Court has distinctly ruled the contrary in cases of children. Rosenkranz v. Railroad, 108 Mo. 17, citing Grogun v. Fischer Co., 87 Mo. 326; Nagel v. Railroad, 75 Mo. 658; Wise v. Railroad, 198 Mo. 562; Stotler v. Railroad, 200 Mo. 142; Brunke v. Telephone Co., 112 Mo.App. 628; Brown v. Railroad, 127 Mo.App. 508. (3) The damages awarded are not excessive. Woods v. Railroad, 188 Mo. 243; Brody v. Railroad, 206 Mo. 540; Stotler v. Railroad, 200 Mo. 149; Devoy v. Railroad, 192 Mo. 228.
This is a suit for damages accrued to plaintiff on account of the negligence of defendant. Plaintiff recovered and defendant prosecutes the appeal. Plaintiff, a little girl aged about seven years, sues by her next friend, duly appointed and qualified in that behalf.
Plaintiff received her injury on defendant's railroad track in Poplar street, about fifty feet east of the crossing of Fourth street therewith, in the city of St. Louis. Poplar street runs east and west and Fourth street north and south. Defendant maintains a railroad track in the center of Poplar street, and at the time in question was operating its locomotive and a train of thirty cars to the eastward along the public thoroughfare mentioned. The locomotive attached to this long train of cars was a switch engine, which was being operated to the eastward on Poplar street, with the tender of the locomotive in the front. At the time of her injury, plaintiff was but six years of age and without the consent of her mother had wandered from her home, about a half block from where she was hurt, to a grocery store, situate at the northeast corner of Fourth and Poplar streets. The evidence for plaintiff tends to prove that she came out of the grocery store on the northeast corner of Poplar and Fourth streets and started in a southeasterly direction across Poplar street toward her home, when the forward end of defendant's approaching train, which it seems she did not observe, was about a block to the west or immediately east of Broadway. As plaintiff walked diagonally across Poplar street and upon defendant's track, it is said she took a few steps to the east or southeast on the track and was then run upon by the locomotive and dragged for a considerable distance by the step which is attached across and beneath the tender of the engine. As a result of the collision, plaintiff's left foot was crushed so as to occasion the amputation of the lower portion of her leg between the knee and the ankle.
The petition avers as negligence on the part of defendant, first, a combination of circumstances to the effect that it operated its engine and train to the eastward on Poplar street with the tender in front of the engine and without exercising any care whatever to watch for persons ahead of said tender, engine and cars and without using any care to control the movement of said tender, engine and train of cars to prevent running same against and on plaintiff and injuring her, and without using any care to warn plaintiff of the approach of said engine, tender and cars, etc. For a second specification of negligence, the petition counts upon the ordinance of the city of St. Louis, imposing the duty upon railroads operating locomotives by steam power to keep the bellattached thereto constantly sounding, to the end of warning persons of their approach, and avers that defendant breached the duty thus enjoined by wholly omitting and failing to sound the bell on its engine as it moved along Poplar street before and at the time of plaintiff's injury. Besides the facts above stated, there is an abundance of evidence in the record tending to prove that, at the time in question, defendant operated its locomotive with the tender thereof forward and about thirty cars attached at from five to eight miles per hour in Poplar street, which is a public thoroughfare of the city, without making observations for the safety of persons on the street. Indeed, it is conceded the locomotive and train did not stop even when plaintiff was injured and that the engineer knew nothing of the unfortunate incident until some time thereafter. As before stated, at the time of her injury, the little child was en route diagonally across the street from the grocery store and upon defendant's tracks and the view was unobstructed for more than a city block when she might have been seen approaching the track oblivious to danger. It is proved in the case and not denied that the locomotive and train could have been stopped under the circumstances within a distance of from thirty to sixty feet by using the appliances at hand for that purpose but no effort to do so was made, for, beyond question, those operating the locomotive did not see the little one either approaching or upon the track. One witness for plaintiff gave testimony to the effect that he observed her going toward the track when the train was the width of Fourth street, and more than a half block besides, west of her. On these facts, no one can doubt that negligence was shown with respect to defendant's duty to make observations for persons on the street who were approaching or about to cross the track. [Rosenkranz v. Lindell Ry. Co., 108 Mo. 9, 18 S.W. 890.] Because of plaintiff's extreme youth and the facts of immature judgment and want of caution which attend the instincts of children of such tender age, the question of contributory negligence on the part of plaintiff was for the jury. [Holmes v. Mo. Pac. R. Co., 190 Mo. 98, 88 S.W. 623.] Indeed, defendant does not controvert the propositions above stated.
But it is argued the court should not have submitted to the jury the matter of defendant's breach of duty with respect to the obligation to sound the bell on the locomotive. A number of witnesses testified for defendant that the bell was sounded during the time, while, on the other hand, a number of witnesses who were present testified for plaintiff to the contrary. It is argued that as defendant's evidence with respect to sounding the bell was direct and positive, that for plaintiff is of no probative worth for the reason the bell might have sounded and they not hear it. The argument is without merit, for it was a negative fact which plaintiff was called upon to prove, and the proof to that end is essentially negative as well. It...
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