Carr v. City of St. Joseph

Decision Date02 December 1920
Docket NumberNo. 20760.,20760.
Citation225 S.W. 922
PartiesCARR et ux. v. CITY OF ST. JOSEPH.
CourtMissouri Supreme Court

Appeal from Circuit Court, Buchanan County; L. A. Vories, Judge.

Action by John C. Carr and wife against the City of St. Joseph. From an order granting a new trial after verdict for defendant, defendant appeals. Reversed and remanded, with directions to reinstate the verdict and enter judgment thereon.

Stigall, Meyer & Hamm, of St. Joseph, for appellant.

Edwin M. Swartz, of Los Angeles, Cal., and Duvall & Boyd, of St. Joseph, for respondents.

JAMES T. BLAIR, P.J.

This is an appeal from an order granting a new trial after verdict for defendant city in an action plaintiffs brought to recover damages for the death of their minor son. The boy was drowned in a pond or pool of water which the evidence tends to show collected on ground defendant was grading and preparing for use as a park. There is evidence that the city, while _filling in Twenty-Eighth street for the purpose of widening it, covered the opening of a culvert which theretofore had carried away surface water so that it had not previously formed a pool of dangerous depth. Plaintiffs live near the place where their son was drowned. In the trial court the questions contested were: (1) Whether defendant was guilty of any actionable negligence; and (2) whether plaintiffs were barred by contributory negligence. After verdict for defendant, the trial court sustained the motion for new trial on the ground that it erred in giving for defendant instruction 4 on the question of the effect of contributory negligence on the part of plaintiffs. This instruction reads as follows:

"The court instructs the jury that it is the duty of parents of minor children of the age of 12 years or less to use ordinary care in overseeing the acts and conduct of their said children and in keeping them away from places of danger, and if you believe and find from the evidence that the plaintiffs knew, or by the exercise of ordinary care could have known, that their minor son, George Ralph Carr, was in the habit of playing in and upon and around a dangerous and unsafe pond of water or upon a raft on said pond which was not reasonably safe, then it was the duty of plaintiffs to use reasonable care to restrain their said minor son and keep him away from said pond and raft, and if you find and believe from the evidence that the plaintiffs did not exercise that degree of care and prudence in restraining and keeping their said son away from the pond and raft mentioned in evidence on June 5, 1917, which ordinarily prudent persona would have exercised under the same or similar circumstances, and said failure and neglect contributed in any degree to the death of said George Ralph Carr, then plaintiffs are not entitled to a verdict, and your verdict must, be in favor of defendant."

The portion of the instruction which plaintiffs' counsel contend is erroneous, and' therefore justifies the trial court's ruling, is the clause "and said failure contributed in any degree to the death of said George Ralph Carr." This position is sustained by the authorities. It is not sufficient to bar an...

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36 cases
  • Perkins v. Kansas City Southern Ry. Co., 29380.
    • United States
    • Missouri Supreme Court
    • April 2, 1932
    ...143 Mo. App. 466; Palmer v. Concord, 48 N.H. 211, 97 Am. Dec. 605; Stainer v. San Luis Valley Land & Mining Co., 166 Fed. 220; Carr v. St. Joseph, 225 S.W. 922; Richardson v. Railroad, 233 Mo. 339; Hogan v. Railroad, 150 Mo. Horace Ruark, E.B. Morgan and Leo H. Johnson for respondent. (1) T......
  • Pettes v. Jones.
    • United States
    • New Mexico Supreme Court
    • March 29, 1937
    ...the efficient cause thereof before it will bar an action if one otherwise could be maintained.” (Citations omitted.) Carr v. City of St. Joseph (Mo.Sup.) 225 S.W. 922, 923. See, also, Gaster v. Hinkley, 85 Cal.App. 55, 258 P. 988; Smirnoff v. McNerney, 112 Conn. 421, 152 A. 399; Fulton v. C......
  • Cotton v. Ship-by-Truck Co.
    • United States
    • Missouri Supreme Court
    • July 10, 1935
    ...111 Kan. 515; Atwood v. Railroad Co., 44 Utah, 366; Hardy v. Barrett, 257 Pa. St. 42; Barr v. Railroad Co., 37 S.W. (2d) 927; Carr v. St. Joseph, 225 S.W. 922; Ziegelmeier v. Ry. Co., 51 S.W. (2d) 1030. (4) The court erred in giving plaintiff's Instruction A, which covered the entire case a......
  • Cotton v. Ship-By-Truck Co.
    • United States
    • Missouri Supreme Court
    • July 10, 1935
    ... ... peremptory instruction. Sec. 967, R. S. 1929; Sutton v ... Kansas City Star Co., 54 S.W.2d 458; Thompson v ... Main Street Bank, 226 Mo.App. 246, 42 S.W.2d 58; ... Utah 366; Hardy v. Barrett, 257 Pa. St. 42; Barr ... v. Railroad Co., 37 S.W.2d 927; Carr v. St ... Joseph, 225 S.W. 922; Ziegelmeier v. Ry. Co., ... 51 S.W.2d 1030. (4) The court ... ...
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