Bunyan v. Citizens' Ry. Co.

• Decision Date: 19 February 1895
• Citation: 29 S.W. 842,127 Mo. 12
• Parties: BUNYAN et al. v. CITIZENS' RY. CO.
• Court: Missouri Supreme Court

29 S.W. 842

127 Mo. 12

BUNYAN et al. v. CITIZENS' RY. CO.

Supreme Court of Missouri, Division No. 1.

February 19, 1895.

STREET RAILWAYS — DUTY OF GRIPMAN — NEW TRIAL.

1. The gripman of a cable street railway is not required to stop or check the car on seeing a pedestrian approaching the track, as he has the right to assume that the pedestrian will use reasonable precautions to avoid danger.

2. A gripman of a cable street railway must, when it is apparent that a pedestrian is about to place himself in danger, use every possible effort, consistent with the safety of the passengers, to avoid injury to him.

3. An order granting a new trial for error in instructions will not be set aside, though the appellate court may think, in considering the charge as a whole, that it was not sufficient to require a reversal.

Appeal from St. Louis circuit court; Daniel Dillion, Judge.

Action by John Bunyan and others, minors, by their next friend, against the Citizens' Railway Company. There was a verdict for defendant, and from an order granting a new trial defendant appeals. Affirmed.

Smith P. Galt, for appellant. Stone & Slevin, for respondents.

MACFARLANE, J.

This is an action by plaintiffs, as the minor children of John Bunyan, on account of the negligence, as is alleged, of the employés of defendant in operating one of its trains of cars. The trial resulted in a verdict for defendant, which, on motion of plaintiff, was set aside, and a new trial ordered. From the order granting a new trial, defendant appealed.

The petition charges that John Bunyan was killed on May 24, 1890, by defendant's cars. The following is the charge of negligence made by the petition: "Plaintiff avers that said accident, whereby said John Bunyan was run over and killed as aforesaid, was caused by the carelessness and negligence of defendant's said servants and employés, in failing and neglecting to observe said John Bunyan approaching said tracks, and being on or near said tracks, in a position of danger, and in failing and neglecting and refusing to stop said car in time to have prevented the accident." The answer was a general denial, and a plea of contributory negligence. On the trial, evidence was introduced by the parties tending to prove the issues made by the pleadings. Stating the facts developed at the trial more in detail, it appeared that defendant operated a cable street railway along Easton avenue, in the city of St. Louis. On the 24th day of May, 1890, as a train of cars approached, John Bunyan, the father of plaintiffs, who, the evidence tends to prove, was more or less intoxicated, started, about the center of a block, to cross the street. As he got upon the track of the railway, he was struck by the cars, and afterwards died from the injuries received thereby. The evidence tended to prove that the cars were in full view of deceased, and he either never looked, to learn that they were approaching him, or paid no heed to them. It also tended to prove that the gripman in charge of the car could have seen the danger to which the deceased had exposed himself in time, by proper care, to have avoided striking him.

At the request of the plaintiffs, the court gave the jury this instruction: "The court instructs the jury that if they believe from the evidence that the gripman in charge of defendant's car, by the exercise of ordinary care and prudence, might have discovered the deceased upon the track, or in a dangerous position, before the car ran over him, and might then have stopped the car, and avoided running over deceased, then you will find for the plaintiffs in the sum of five thousand ($5,000) dollars." Plaintiffs asked an instruction which the court amended and gave. As amended by the words in italics, the instruction was as follows: "The court instructs the jury that if they believe from the evidence that the gripman in charge of the car that did the injury saw, or by the exercise of ordinary care could have seen, the deceased upon the track, or approaching the same, and so near thereto as to be in danger of being hurt by said car, and thereafter could have prevented the injury to the deceased by the exercise of ordinary care, but failed or neglected to do so, then your verdict must be for the plaintiffs, in the sum of five thousand ($5,000) dollars, although you may believe the deceased was under the influence of liquor, or in a state of intoxication." This instruction asked by plaintiffs was refused: "The court instructs the jury that if they believe from the evidence that the deceased, John Bunyan, came to his death from the injuries received on the date mentioned in the petition, by being struck by the grip car of defendant, through the negligence of the servants of employés of said defendant, then they will find a verdict for plaintiffs, unless you further find that the said injuries were primarily caused by the carelessness and negligence of the deceased." At the request of the defendant the court gave these two instructions: "(1) The court instructs the jury that it was the duty of the deceased, John Bunyan, before he attempted to cross the defendant's track, to look to see if there was a train approaching, and, if he could see such train approaching, it was his duty to stop before reaching the track, and not place himself in a position of danger, where he might be struck by the train; and if the jury believe from the evidence he could have seen the train, if he had so looked, and he did not do so, and did not stop, but went on, and stepped onto the track, immediately in front of the train, and so close to it that it could not be stopped after he had put himself in danger, before it struck him, then the court instructs the jury that their verdict must be for the defendant. (2) The court instructs the jury that the gripman was not obliged to stop the train when Bunyan first stepped from the pavement, but had a right to rely on it that Bunyan would discharge his duty, and look and stop before the train would reach him, if his going on would endanger him; and if the jury believe from the evidence that the gripman was keeping a vigilant watch ahead, and so soon as he saw or believed, or had reason to see and believe, that Bunyan would not stop, he tried his best to stop the train, then the jury will find their verdict for the defendant, notwithstanding Bunyan was injured by the train, and died from the effects of those injuries." Other instructions were given at request of defendant. These declared, in effect, that, though deceased was under the influence of liquor when struck, that fact alone would not excuse him from the use of prudence; that negligence could not be presumed from the mere fact of the injury; that the burden of proof was on plaintiffs to prove negligence on the part of the gripman; and that, in determining the issues, the jury...