Czezewzka v. Benton-Bellefontaine Railway Company

• Decision Date: 24 March 1894
• Citation: 25 S.W. 911,121 Mo. 201
• Parties: Czezewzka v. Benton-Bellefontaine Railway Company, Appellant
• Court: Missouri Supreme Court

25 S.W. 911

121 Mo. 201

Czezewzka v. Benton-Bellefontaine Railway Company, Appellant

Supreme Court of Missouri, First Division

March 24, 1894

Appeal from Warren Circuit Court. -- Hon. W. W. Edwards, Judge.

Affirmed.

Nathan Frank and Chas. W. Bates for appellant.

(1) The hypothetical question as to the distance in which a car can be stopped should embody all the facts relating to the subject. Senn v. Railroad, 108 Mo. 142. (2) The petition fails to state a cause of action in that it does not state that the deceased was unmarried. R. S. of Mo. 1889 sec. 4425; Barker v. Railroad, 91 Mo. 86; Sparks v. Railroad, 31 Mo.App. 190; Dulaney v Railroad, 21 Mo.App. 597; McIntosh v. Railroad, 103 Mo. 131. (3) The instructions for the plaintiff are erroneous in that they authorized a recovery by the plaintiff without a finding that the deceased was unmarried. (4) The liability of defendant in this case depends upon whether the driver was negligent after the deceased was in danger. Overholt v. Vieths, 93 Mo. 422; Donahoe v Railroad, 83 Mo. 543; Dunn v. Railroad, 98 Mo. 652; Rine v. Railroad, 88 Mo. 392. (5) Negligence on the part of the parents in permitting the child to go upon the street unattended to a place of danger, where it was killed, is a complete defense. It follows that the acts of the child in going to a place of danger is a part of the defense, for the negligent permission on the part of the parents would not defeat action; unless, under their negligent permission, the child acted and went in such place where it was dangerous, and where it was killed. (6) It is error to give an instruction which assumes a controverted fact. Stoher v. Railroad, 91 Mo. 509. (7) Where an instruction for appellee is erroneous, the error is not cured by a correct one on the same subject given for the appellant. Billups v. Daggs, 38 Mo.App. 367. (8) The giving of conflicting instructions is error, especially where the erroneous instructions were given at the instance of appellee, and the jury found a verdict in favor of appellee. Bluedorn v. Railroad, 108 Mo. 439. (9) An instruction calculated to mislead the jury should be refused. Wigsby v. Fullerton, 67 Mo. 309; George v. Railroad, 40 Mo.App. 447.

Sterling P. Bond for respondent.

(1) The hypothetical questions as to the distance in which a car can be stopped, embodied all the facts relating to the subject and no hypothetical question was objected to. The action of the trial court in admitting and rejecting evidence must be objected to and specifically excepted to at the time, otherwise the appellate court will not consider it. Harrison v. Bartlett, 51 Mo. 170; Keim v. Railroad, 90 Mo. 314; Griffith v. Hanks, 91 Mo. 109; Parsons v. Railroad, 94 Mo. 286. (2) The petition states a cause of action; it states that the deceased was an infant, under two years of age. R. S. of Mo. 1889, sec. 6840; 2 Kent's Com. [13 Ed.], sec. 78, p. 94; 2 Cooley's Bla. Com. [3 Ed.], sec. 22, p. 285; McIntosh v. Railroad, 103 Mo. 131. (3) The plaintiff can recover in this case, if the driver saw deceased in danger, or by the exercise of ordinary care could have seen deceased in danger, and by the exercise or ordinary care could have prevented the death. O'Flaherty v. Railroad, 45 Mo. 70; Frick v. Railroad, 75 Mo. 595; Welsh v. Railroad, 81 Mo. 466; Dunkman v. Railroad, 95 Mo. 232; Jennings v. Railroad, 99 Mo. 394; Rosenkranz v. Railroad, 108 Mo. 9; Senn v. Railroad, 108 Mo. 142; Humbird v. Railroad, 110 Mo. 76. (4) Instruction does not assume controverted facts. O'Connell v. Railroad, 106 Mo. 482. (5) To warrant a reversal there must be positive error in instructions, materially affecting the merits of the case. Barry v. Railroad, 98 Mo. 62; Haniford v. City of Kansas, 103 Mo. 172; R. S. 1889, sec. 2303. (6) Defendant can not be allowed to complain of plaintiff's instructions, where his own announced the same doctrine. Holmes v. Braidwood, 82 Mo. 110; Thorp v. Railroad, 89 Mo. 666; McGowen v. Railroad, 109 Mo. 518. (7) All of the instructions given by the court, whether for the plaintiff or defendant, must be taken and read together; and if being so read, they are consistent and not calculated to mislead the judgment, should be permitted to stand. Karl v. Railroad, 55 Mo. 476; Whalen v. Railroad, 60 Mo. 323; Reilly v. Railroad, 94 Mo. 600; Shortel v. St. Joseph, 104 Mo. 114; Dickson v. Railroad, 104 Mo. 491. (8) In a cause like this it is proper, under proper instructions, for the jury to determine, whether or not the parents were guilty of negligence which contributed to the infant's death. O'Flaherty v. Railroad, 45 Mo. 70; Frick v. Railroad, 75 Mo. 542; Farris v. Railroad, 80 Mo. 325; Reilly v. Railroad, 94 Mo. 600. (9) The court properly refused the instruction in the nature of a demurrer to evidence asked by defendant. Ewing v. Railroad, 96 Mo. 290; Weber v. Railroad, 100 Mo. 194. (10) It is not error to show by competent testimony how street cars are managed and operated. Boland v. Railroad, 36 Mo. 484; Dougherty v. Railroad, 81 Mo. 325; Rosenkranz v. Railroad, 108 Mo. 9. (11) The cross-examination of a witness is of necessity largely under control and within the discretion of the primary court. Ingram v. State, 67 Ala. 67. (12) It is negligence for driver to be looking back. Collins v. Railroad, 142 Mass. 301; Humbird v. Railroad, 110 Mo. 76.

OPINION

Brace, J.

This is an action for damages originally brought in the circuit court of the city of St. Louis, by John Czezewzka and his wife Eva, against the defendant for the death of their infant son. The case was taken by change of venue to the Warren county circuit court, where it was tried. Before the trial the husband died. The plaintiff Eva on the trial obtained a judgment for $ 5,000, and the defendant appealed.

The cause of action as set out in the petition is as follows:

"That on or about the fifth day of July, 1889, Gustavus Czezewzka, an infant son of said plaintiffs, under the age of two years, whilst upon North Fourteenth street, a public thoroughfare in the city of St. Louis, was run over and killed by the defendant's street car, hauled by a team of mules attached thereto, on said Fourteenth street, by reason of the carelessness and negligence and disregard of duty on the part of the servant of said defendant, in managing and operating said car, and in failing to keep a proper lookout for persons approaching and on defendant's street car track.

"Plaintiffs further aver that at the time said Gustavus Czezewzka was run over and killed, the defendant had a driver on the front platform of said car, driving said team attached thereto, and that the driver saw, or in the exercise of reasonable care and diligence in keeping a lookout for persons on foot, either on the track or moving towards it, could and would have seen the plaintiff's son in time to have stopped said car so as to have prevented said injuries; nevertheless, said driver carelessly and negligently failed to observe said infant, in said perilous position, or else carelessly and negligently failed to stop said car after observing him, and before said accident, as it was the duty of the driver to do, and as he might, by the exercise of reasonable care and diligence, have done; and that such carelessness and negligence on the part of said driver directly contributed to said death.

"And the plaintiffs further aver that, at the time of said injuries and death, the agent and servant of the defendant in charge of said car, saw, or by the exercise of reasonable care and diligence would have seen, said infant in time to have stopped said car and prevented said death; yet, he failed and neglected so to do, which failure and negligence on his part directly contributed to cause said death."

The answer was a general denial and a plea of contributory negligence on the part of plaintiffs in permitting the deceased to go unattended on or near the defendant's track; upon which issue was joined by reply.

The facts, as they appear in the evidence, in support of plaintiff's case, are, that on the morning of July 5 1889, the father of the deceased infant was not at home, having gone to his work; that the three older children had gone to school, and the three younger children were asleep in one room. While their mother was in the kitchen preparing her husband's breakfast, the infant son who was killed awoke and escaped into the street. When the child got out the mother did not know. They had been married about thirteen years; were laboring people; the husband earned $ 30 per month, upon which he and his family subsisted; they were not able to hire a nurse for their infant; other people lived in the same yard, and whenever the mother saw the gate open, she closed it. The mother was first attracted to the street by a a noise in the street, and there, for the first time, discovered that her son had escaped into the street, and was killed by defendant's street car. The day was bright, the street was open, and the driver could have seen everything in front of him; the baby was seen from eight to thirty feet in front of the mules, playing on the car track; the driver was hallooed at, to "look out for the baby," when it was some thirty feet in front of the mules, playing on the track, and there is testimony to the effect that he hallooed several times himself. He was talking to a man on the front rail of the dashboard and looking back; he had his lines in his hand, but his hand was not on the brake. It was shown that the way to manage and operate a car was to have the lines in one hand and the brake in the other. The car was going at the usual gait, and the car could have been stopped within from two and a half to six feet. The wheels of the car passed over the child before it was stopped, and the child was...