Butler v. Metropolitan St. Ry. Co.

• Decision Date: 05 March 1906
• Parties: BUTLER v. METROPOLITAN ST. RY. CO.
• Court: Missouri Court of Appeals

93 S.W. 877

117 Mo. App. 354

BUTLER v. METROPOLITAN ST. RY. CO.

Kansas City Court of Appeals. Missouri.

March 5, 1906.

1. STREET RAILROADS — PERSONAL INJURIES— PERSONS ON TRACK—EVIDENCE — WEIGHT— NEGATIVE TESTIMONY.

Testimony of a bystander that no bell was rung as a train approached a boy standing on the track is not devoid of probative value as against the testimony of those riding on the train that the bell was rung.

2. SAME — OPERATION — SIGNALS — RINGING BELL—DUTY TO WARN PERSON ON TRACK.

Where the gripman on a street railroad train saw a boy standing on the track a distance of 60 feet ahead, it was his duty to ring the bell to warn the boy of the train's approach, and his failure to do so was negligence for which the company was liable.

3. SAME — CONTRIBUTORY NEGLIGENCE — INFANT.

Whether a boy seven years old was guilty of contributory negligence in stopping on a street railroad track without looking to see if a car was approaching is a question for the jury.

4. INFANTS—PERSONAL INJURIES—DAMAGES— EVIDENCE—ADMISSIBILITY.

In an action by an infant to recover for personal injuries, testimony of his father that he paid the physician who treated the infant a certain sum was inadmissible.

5. APPEAL—DISPOSITION OF CAUSE—REVERSAL —REMITTITUR.

Error in the admission of evidence that the father of the infant plaintiff, in an action for personal injuries, paid a certain sum for physician's services cannot be cured by a remittitur of the amount stated to have been paid, but the entire judgment must be reversed; such evidence tending to show the seriousness of the injury, thereby affecting the amount of damages recovered.

Appeal from Circuit Court, Jackson County; A. F. Evans, Judge.

Action by James L. Butler, by next friend, against the Metropolitan Street Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

John H. Lucas, for appellant. Amos Townsend and A. S. Lyman, for respondent.

JOHNSON, J.

Action to recover damages for personal injuries alleged to have been caused by the negligence of defendant. The trial resulted in a verdict and judgment for plaintiff in the sum of $1,850, and defendant appealed.

The injury occurred at about 4 o'clock in the afternoon of June 24, 1901, on Twelfth street between Jefferson and Summit streets in Kansas City and was caused by one of defendant's cable trains westward bound colliding with plaintiff. The petition charges two specific acts of negligence, one of which alone was submitted to the jury; i. e., that defendant negligently failed to give any warning of the approach of the train. The answer, in addition to a general denial, contained a plea of contributory negligence. Defendant earnestly insists that its request for an instruction in the nature of a demurrer to the evidence should not have been denied, for the reasons that under the facts in evidence most favorable to plaintiff, no negligence of defendant, as alleged, was shown and that plaintiff must be held in law to have been guilty of contributory negligence. From the evidence introduced by plaintiff, it appears that at the time of injury plaintiff, a boy seven years old, had stopped on his way home to look at pictures upon a billboard on the north side of Twelfth street, a short distance west of Jefferson street. He then started south for the purpose of crossing the street, and when he reached the south rail of defendant's track for west-bound cars, stopped for the purpose of picking a piece of glass from the sole of one of his feet (he was barefooted). While so engaged he was struck by a running train, knocked down, and rolled over and over until the train was brought to a standstill. He could have seen the approaching train, but did not look; heard no bell or other warning given, and was unaware of his danger. The distance of the front end of the grip car from plaintiff when he paused on the track is not accurately shown, but there is substantial evidence tending to show that it was at least 60 feet, and the car was traveling at the rate of 10 or 12 miles per hour. There was nothing to prevent the gripman from seeing plaintiff, but no effort was made to stop the car until after the collision, nor was the bell rung or other warning given before plaintiff was struck.

Defendant's witnesses testified that before the injury plaintiff was walking close behind a wagon that was moving eastward along the south side of Twelfth street, and was concealed by the wagon from the view of the gripman and others on the train; that the bell was being continuously sounded before the collision to give warning to the occupant of the approaching wagon; that plaintiff suddenly emerged from behind the wagon, which was near the track, and was immediately struck by the car. The gripman testified: Q. "What were you doing at the time the boy came out in front of the car?" A. "I was ringing the bell. I had just rung the bell. I seen the wagon on the track, you know, and I had just rung the bell there to notify them that the car was coming before I got any closer. I was in the habit of doing that when there was an obstruction near the track." First, it is claimed by defendant there is no substantial evidence that the bell was not being rung before the collision, for the reason that the positive statement of the gripman and several of the passengers that such warning was being given is opposed only by the testimony of plaintiff's witnesses that they did not hear the bell, and that such negative evidence is valueless under the rule stated in Shaw v. Ry. Co., 104 Mo., loc. cit. 657, 16 S. W. 832, and Sanders v. Southern Ry. Co., 147 Mo., loc. cit. 424, 48 S. W. 855. One of plaintiff's witnesses, Mr. Riley, testified that he was standing at a place, from which it is apparent he could see and hear all that was occurring, and was closely observing the movements of the boy and the approach of the train. On direct examination he stated that the bell was not rung until after the boy was struck, and on cross-examination said: Q. "You say the motorman was ringing his bell—did you hear the bell ring?" A. "After the boy had been hit he rung the bell." Q. "After the boy had been hit?" A. "Yes, sir." Q. "Wasn't he ringing the bell before the boy was hit?" A. "Not that I could hear." Q. "Were you paying attention?" A. "I was." Q. "What were you paying attention to?"...