Childress v. Southwest Missouri R. Co.

• Decision Date: 03 January 1910
• Citation: 141 Mo. App. 667,126 S.W. 169
• Parties: CHILDRESS et ux. v. SOUTHWEST MISSOURI R. CO.
• Court: Missouri Court of Appeals

126 S.W. 169

141 Mo. App. 667

CHILDRESS et ux. v. SOUTHWEST MISSOURI R. CO.

Springfield Court of Appeals. Missouri.

January 3, 1910.

Rehearing Denied March 7, 1910.

1. APPEAL AND ERROR (§ 966) — CONTINUANCE — DENIAL — REVIEW.

Whether a party is entitled to a continuance on an affidavit of surprise after the pleadings have been amended rests largely in the discretion of the trial court, the exercise of which will not be disturbed on appeal unless manifestly abused.

2. CONTINUANCE (§ 31) — SURPRISE.

Where, during the trial, defendant applied for a continuance for surprise at the testimony of certain witnesses variant from that given on a prior trial, but defendant had not called the variance to the attention of the witnesses nor asked for an explanation, and only stated that if a continuance was granted it believed that it would be able to place its defense in shape to avoid the bad effects of the testimony referred to, but did not claim that other witnesses could be procured, or that the testimony given was untrue, the application was properly denied, under the rule that a continuance for a surprise will be denied where the court is not satisfied that a different result would likely ensue on another trial.

3. STREET RAILROADS (§ 118) — DEATH OF PEDESTRIANS — CHILDREN — INSTRUCTIONS.

The court charged that if the jury found that decedent exercised such care and caution for his own safety as a reasonably prudent child of his age and capacity would have exercised under similar circumstances, and defendant's motorman, operating the car, either saw, or by exercising ordinary care could have seen, deceased moving toward and along the track in a perilous position in front of the car in time to check its speed, with safety to its passengers, and to have avoided running against and injuring deceased, and defendant's servant neglected and failed to do so, and such failure, if any, proximately caused decedent's death, plaintiff was entitled to recover. The court also charged that if the motorman sounded the gong and used all of the ordinary danger signals to attract decedent's attention, and though decedent was negligent in going on the track when and where he was killed, yet if the motorman by the exercise of ordinary care could have seen decedent on the tracks or approaching them, with the evident intention of entering thereon or crossing them, in time to have stopped the car or so slackened its speed as to have prevented the injury, and failed to do so, and on account thereof decedent was struck and killed, plaintiff was entitled to recover. Held, that both instructions were based on the humanitarian doctrine and were not in conflict as authorizing a finding for plaintiff because of defendant's negligence without any negligence on plaintiff's part, and also authorizing a finding for plaintiff on the humanitarian doctrine.

4. STREET RAILROADS (§ 81) — DEATH OF PEDESTRIAN — CHILDREN — CARE REQUIRED.

A street railroad company is required to exercise a much higher degree of care to refrain from injuring children on the streets than it owes to adults.

5. STREET RAILROADS (§ 95) — INJURIES TO CHILDREN — CARE REQUIRED.

Where a motorman of a street car sees a child leaving an alley and starting across the street, it is the motorman's duty to slacken speed and get the car under control, with the brakes ready for instantaneous use, so that if the child, without exercising the care of a grown person, attempts to cross the track, the motorman will be in a condition to at least greatly lessen the chances of collision.

6. DEATH (§ 104) — DAMAGES — STATUTES — PENALTY — INSTRUCTION.

Rev. St. 1899, § 2864, as amended by Laws 1905, p. 135 (Ann. St. 1906, p. 1637), provides that, in case of wrongful death by the negligence of the operator of a street car, the defendant shall forfeit and pay as a penalty for each person so dying a sum of not less than $2,000, nor exceeding $10,000, in the discretion of the jury. Held, that an instruction, in an action against a street railway company for killing a child, limiting plaintiffs' recovery to compensatory damages, was erroneous; plaintiffs being entitled to recover some amount, in any event, as a penalty.

7. EVIDENCE (§ 11) — JUDICIAL NOTICE — CONTEMPORARY HISTORY.

The court will take judicial notice, if necessary, of the facts of contemporary history in order to properly construe a statute.

8. APPEAL AND ERROR (§ 216) — INSTRUCTIONS — RIGHT TO REVIEW — NECESSITY OF REQUEST.

Where a party neglected to ask for an instruction setting out the proper measure of damages, he could not complain on appeal that the jury were not properly instructed on such issue.

9. DEATH (§ 99) — DAMAGES — CHILDREN — EXCESSIVENESS.

In an action for death of plaintiffs' eight year old son, who was killed by defendant's street car, a verdict allowing plaintiffs $4,000 was not excessive under Rev. St. 1899, § 2864, as amended by Laws 1905, p. 135 (Ann. St. 1906, p. 1637), providing that in such an action defendant shall forfeit as a penalty not less than $2,000 nor more than $10,000, in the discretion of the jury.

Appeal from Circuit Court, Jasper County; David E. Blair, Judge.

Action by Will Childress and wife against the Southwest Missouri Railroad Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

McReynolds & Halliburton, for appellant. W. F. Maher, Hugh Dabbs, C. V. Buckley, and R. M. Sheppard, for respondents.

GRAY, J.

About 4 o'clock p. m. on the 11th day of December, 1908, Edward Childress, the eight year old son of the respondents, was struck and killed by a street car of the defendant on Twentieth street, in the city of Joplin, and this action was instituted by respondents to recover from the appellant the penalty or damages provided under section 2864, Rev. St. 1899, as amended by Sess. Acts 1905, p. 135 (Ann. St. 1906, p. 1637). The cause was tried before a jury, resulting in a verdict in favor of the respondents for the sum of $4,000, and the defendant appealed therefrom.

The petition alleged that the appellant was engaged in operating a street railroad, with double tracks, on Twentieth street in the city of Joplin; that said street was used by a large number of people, women and children, for the purpose of traveling on foot, and such fact was well known by the appellant and its servants in charge of its cars; that it became and was the duty of the appellant to keep a vigilant lookout for persons, and particularly children of tender years, who might be upon and approaching said tracks; that on the 11th day of December, while respondents' infant son was upon said Twentieth street, exercising reasonable care for his own safety, he was run over and killed by one of the appellant's cars, by reason of the carelessness and negligence of appellant's servants in managing said car, and in failing to keep a proper lookout for children, and particularly their infant son, who was approaching or on appellant's tracks. It was further alleged that the servants of defendants who were in charge of the car, by the exercise of reasonable care and diligence in keeping a lookout for children on or near the track, could and would have seen respondents' son in time to stop said car, and thereby prevented his death, but although they knew, or could have known, that said child was in a perilous situation, they failed to observe said infant, and carelessly and negligently failed to stop said car after observing him, and that on account thereof he was run over and killed.

The answer admitted that appellant was operating its cars on the streets, and alleged that the accident was caused solely by the negligence and carelessness of said infant suddenly darting in front of one of appellant's cars when the same was so near him that it was impossible for appellant's motorman to stop the car. The reply was a general denial.

The appellant concedes that the evidence on behalf of the respondents tended to support the theory of their petition, and that the case was one for the jury, In fact, there are only three reasons urged for the reversal of the judgment, and they are as follows: First, the court erred in overruling appellant's application for a continuance made during the trial; second, that the court erred in giving respondents' instructions Nos. 1 and 2; and, third, the court erred in refusing appellant's instruction No. 1.

The application for continuance was filed because appellants claimed to have been surprised during the trial by the testimony of A. C. Ford, Mrs. A. J. Waterhouse, and Calvin Stelts. The evidence showed that Twentieth street runs east and west, and that Bird street runs north and south across said street, and that the next street east of Bird street is Ivy street, which also runs north and south across said Twentieth street, and that there is an alley running north and south across Twentieth street between Bird and Ivy streets.

Ford was placed upon the stand by the respondents, and testified, on direct examination, that he was standing on Ivy street at the intersection of Twentieth street, waiting for a car which was coming from the west, going east; that he first saw the car at Bird street, and when he first saw the boy he was leaving the alley from the north; that after leaving the alley he started towards the tracks and got over one track and onto the other when he was struck by the eastbound car. He also testified that he did not notice that the speed of the car was slackened in any manner before it struck the boy. On cross-examination the witness testified that the boy was traveling in a trot and in a southeasterly direction, and was in about eight or ten feet of the car when he stepped in front of it, and that signals were given about Bird street and after. It was also shown on cross-examination that the witness made a written statement and signed it the next day after the accident, and that the same was made at the request of the appellant's representative....