Cornovski v. St. Louis Transit Co.

• Decision Date: 27 November 1907
• Parties: CORNOVSKI et ux. v. ST. LOUIS TRANSIT CO.
• Court: Missouri Supreme Court

106 S.W. 51

207 Mo. 263

CORNOVSKI et ux. v. ST. LOUIS TRANSIT CO.

Supreme Court of Missouri, Division No. 1.

November 27, 1907.

1. TRIAL — QUESTIONS OF LAW — UNCONTRADICTED EVIDENCE.

Where the evidence is undisputed, all one way, and of such cogency, that but one conclusion can be drawn by a rational mind, or where the thing proves itself, the court may deal with it as a matter of law.

2. STREET RAILWAYS — DANGER LINE.

In an action against a street railway company for running over a four year old child it is

not error to assume that, as to her, the curb line of a city street is the danger line in crossing the street.

3. SAME — INSTRUCTION — CONSTRUCTIVE LINE OF DANGER.

An instruction that if the motorman in charge of a car saw, or by keeping a vigilant watch would have seen, plaintiff's intestate crossing the street, and in a position of danger, etc., did not assume that the curb line was the danger line.

4. SAME — SUFFICIENCY — PROXIMATE CAUSE.

An instruction that if defendant's motorman saw, or by keeping a vigilant watch would have seen, the decedent crossing the street, and in a position of danger, and by stopping the car within the shortest time and space practicable, etc., with the means and appliances at hand, by the exercise of ordinary care consistent with the safety of the car and persons thereon, could have avoided running over and killing decedent, and neglected to do so, plaintiffs are entitled to recover, etc., in the absence of contributory negligence, is sufficient to submit to the jury the question of causal connection between the negligence of defendant and the death of the child, though it did not use the expression "proximate cause."

5. TRIAL — CURE OF INSTRUCTIONS.

If the instruction was not sufficient to correctly submit the question of the proximate cause of the injury, it was cured by other instructions that, before the jury could find for plaintiff, they must find that the death of the child was actually caused by defendant in the manner submitted to them by the instructions; that, if her death was not actually caused by such specified negligence, plaintiffs had no case, even if the child was killed by being run over by defendant's car, and that they could not infer negligence from the fact of the child's injury by the car, and that, though the burden was on defendant to establish plaintiff's contributory negligence, it did not relieve plaintiff of the burden of proving that the injury and death of the child were solely caused by defendant's negligence.

6. NEGLIGENCE — IMPUTED NEGLIGENCE — INSTRUCTIONS — CIRCUMSTANCES IN LIFE.

In an action against a street railway company for running over plaintiff's four year old child, it was not error to instruct that, in determining whether plaintiffs by their negligence in the custody and care of the child contributed to her injury and death, the jury was to consider whether or not they exercised that degree of care, caution, and watchfulness over the child, which was reasonable and proper for parents in their circumstances of life, as shown by the evidence.

7. APPEAL — HARMLESS ERROR — INSTRUCTIONS.

Where the evidence as to "circumstances in life," mentioned in an instruction as to imputing the negligence of parents to a child run over and killed by a street car, went no further than to show the employment and duties of father and mother at the immediate time the child escaped into the street and was injured, and there was no proof as to plaintiffs' financial condition in life as such, the instruction, if erroneous, would not be prejudicial.

Graves, J., dissents as to the propriety of the instruction permitting consideration of plaintiffs' circumstances in life. Valliant, P. J., and Woodson, J., dissent from the criticism of the Levin and Czezewzka Cases.

Appeal from Circuit Court St. Charles County; H. W. Johnson, Judge.

Action by Hymen Cornovski and wife against the St. Louis Transit Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Boyle & Priest, Edward T. Miller, and T. E. Francis, for appellant. Wm. L. Bohnenkamp and Wm. R. Gentry, for respondents.

LAMM, J.

Plaintiffs, husband and wife, the parents of Esther Cornovski (the said Esther having been run over and killed by one of defendant's cars on the evening of the 18th of March, 1903, in the city of St. Louis), sued defendant for statutory damages as for her wrongful death, and recovered a judgment for $5,000. Perfecting an appeal on due and seasonable steps, defendant brings the cause here for review.

One of the charges of negligence related to a negligent failure to put in motion and drop the fender on the car, as provided in a city ordinance. This charge was taken from the jury by instruction. Another charge of negligence was a failure to sound the gong or give any other warning to the deceased of the danger from an approaching car. That charge also was taken from the jury by instruction. Esther was a minor of tender years. She was killed on Eleventh street, and the ground of negligence charged in the petition and put to the jury was a violation of an ordinance of the city of St. Louis known as the "Vigilant Watch Ordinance," in that defendant's motorman "negligently and carelessly failed to keep a vigilant watch for all persons on foot, and especially the daughter of these plaintiffs, moving towards the track or upon the track, and that said motorman failed on the first appearance of danger to the daughter of these plaintiffs to stop the said car within the shortest time and space possible." The defense interposed was a general denial and a plea of contributory negligence, viz., that the child's death was caused by the negligence of her parents, in that she was of immature years, and they allowed her to be upon a street after dark where they knew street cars were being operated, unaccompanied by a person of mature years. Defendant demurred to the evidence at the close of plaintiffs' case and again at the close of the whole case. These demurrers were overruled and defendant saved an exception, but does not assign error here on said rulings.

The case is presented to us on the theory that plaintiffs made a case for the jury, and the errors assigned pertain to the way it was put to the jury. In this condition of things, the determination of the case may proceed understandingly by fetching a small compass on the facts. Thus: Esther was two or three months short of four years old. She was struck and literally cut to pieces on the evening of March 11, 1903, between half-past 6 and 7 o'clock by a street car manned by defendant's employés. Defendant had a single track on Eleventh street, used for southbound cars. Plaintiff, Hyman Cornovski, kept a grocery store on the east side of that street—the wife helping in the store. They lived back of the store, at least they ate there, and possibly had their living and sleeping rooms over the store. There was a little, narrow yard, so called by courtesy, between the cooking and eating apartments and the store proper, or back of all of them, and this yard was connected with Eleventh street by a passageway shut off from the street by a gate. On the evening in question some of the plaintiffs' children had been upstairs taking a music lesson. The music teacher, passing out on the street, saw Esther sitting quietly on a box in front, and the child threw her a kiss. It seems she had been in the kitchen with her mother, who had just washed her face, combed her hair, and given her her supper, and then told her to tell the other children to come to the table. The mother, busy and preoccupied with her evening household cares, for the instant forgot the child, who went out the back door and into said yard. Soon the mother, hearing screaming in the street, ran out and learned her daughter was dead. She testified the family were new and strange on the street; Esther wasn't used to it; they had moved there in January past, in the winter time; and that when she played out doors it was always in the little yard. The mother did not know she had gone on the street. The father said, in substance, that he was busy in the store waiting on customers, and vending his wares; that glancing out of the front window or door he saw Esther sitting on a little box, hard by the door, a few minutes before she was killed. This was the last time he ever saw her alive, and then she was alone. He did not see her in the street that evening, and never saw her cross it before at any time. It appears, as of course, that both parents knew that defendant's cars ran on a schedule of short intervals on Eleventh street. There was a fire-engine house opposite, or nearly opposite, Cornovski's place. Its door was open, the evening was mild and bright. What lured the child across the street is unknown; but she did cross it, and was seen on the west side by the engine house, going along the sidewalk with another girl aged about seven—a neighbor's. From the west curb to the nearest rail of defendant's track is 12 feet. Presently these children left the west sidewalk and ran from the curb, somewhat diagonally, east toward Esther's home. The elder girl, being in advance, crossed the track and escaped the oncoming car, but Esther was caught and killed at the west rail.

On plaintiffs' side it was shown that, when the children left the curb and passed towards the track, the car was about 60 feet away. Contra, there was evidence on defendant's side that it was only about 12 or 15 feet away. No witness placed the speed of the car in excess of seven miles an hour. There was a very small grade, if any, at the place of the accident — a very slight dip down. The car was equipped with an "ordinary goose neck hand brake, an ordinary controller, and an ordinary reverse." The street was in good condition, the track dry; and in this condition of track, grade, and appliances, the car, according to plaintiffs' experts, could have been stopped within 15 feet. According to d...