Dlauhi v. St. Louis, Iron Mountain and Southern Railway Company
| Decision Date | 25 May 1897 |
| Parties | Dlauhi, by Next Friend, Appellant, v. St. Louis, Iron Mountain and Southern Railway Company |
| Court | Missouri Supreme Court |
Appeal from St. Louis County Circuit Court. -- Hon. Rudolph Hirzel Judge.
Reversed and remanded.
A. R Taylor and Howard Taylor for appellant.
(1) The first instruction given for the defendant ignores any duty on the part of defendant's servants, of preventing the injury, though they may have seen the boy standing on the track, and that he did not observe the approaching train. This has never been the law. It would be inhuman to acquit anyone of blame who should see another, however negligently, expose his life or limb, and thereafter use no care to avoid such injury to such indiscreet person. Hanlon v. Railroad, 104 Mo. 389; Dahlstrom v. Railroad, 108 Mo. 539; Reardon v. Railroad, 114 Mo. 406; Fiedler v. Railroad, 107 Mo. 645; LeMay v. Railroad, 105 Mo. 361; Guenther v. Railroad, 108 Mo. 18; Chamberlain v. Railroad, 33 S.W. 441.
Martin L. Clardy and Henry G. Herbel for respondent.
(1) Plaintiff, having been defeated by a jury's verdict on the statutory negligence charged in his petition, can not now inject into this case a common law charge of negligence, viz., that the defendant's employees in charge of defendant's train could have avoided injuring plaintiff after he was or could have been discovered by them in a position of peril. Fuchs v. City of St. Louis, 34 S.W. 513; Schneider v. Railroad, 75 Mo. 295; Waldhier v. Railroad, 71 Mo. 514; Price v. Railroad, 72 Mo. 416; Butts v. Railroad, 98 Mo. 278; Smith v. Railroad, 47 Mo.App. 550; Kendrick v. Railroad, 81 Mo. 523; Nutter v. Railroad, 22 Mo.App. 332; Hughes v. Railroad, 127 Mo. 453; Sherwood v. Railroad, 33 S.W. 776; Fitzgerald v. Barker, 96 Mo. 665; Burns v. Mayor, 33 S.W. 18; Wolff v. Campbell, 110 Mo. 114. (2) Plaintiff's contributory negligence was also such that no conscientious juror could say that he was without fault. In fact this court on the former appeal (105 Mo. 658) practically held that he was guilty of such contributory negligence as ought to have barred a recovery in this suit. Dlauhi v. Railroad, 105 Mo. 658; Payne v. Railroad, 30 S.W. 139; Lynch v. Railroad, 20 S.W. 645; Railroad v. Martin, 33 S.W. 1070; Nugent v. Milling Co., 33 S.W. 431; Pettit v. Railroad, 59 N.W. 1083.
This is an action by plaintiff, a boy who was at the time of the injury complained of near the age of fourteen years, for damages for personal injuries sustained by him, by being run over by one of defendant's trains of cars on the thirteenth day of July, 1887.
The case was before this court on a former occasion, 105 Mo. 645, 16 S.W. 281. The issues involved as then stated by Gantt, P. J., who wrote the opinion, are as follows:
On the first trial plaintiff recovered a judgment for $ 4,900, which on defendant's appeal was reversed and the cause remanded, because of error committed by the trial court in giving an instruction on the part of plaintiff. On the last trial there was a verdict and judgment for defendant, from which plaintiff appeals.
While the facts as testified to by the plaintiff on the last trial, are somewhat at variance with those stated by him on the first trial, as they appear from the record and the statement by this court on the former appeal, the variance is not thought to be of sufficient importance to require a restatement of the facts as they are fully and fairly stated in that case.
The first assignment of error is with respect to the action of the court in giving the first instruction asked by defendant. It is insisted that this instruction ignores any duty, on the part of defendant's servants, to prevent the injury, though they may have seen plaintiff standing on the track, and that he did not observe the approaching train.
Upon the other hand, it is strenuously insisted that the petition is not framed upon that theory, that is, that the plaintiff was entitled to recover on the common law ground that defendant's servants in charge of the engine by which plaintiff was struck, could have avoided injuring him after his perilous position was or might have been discovered by them had they exercised due care and watchfulness. It is argued that the petition is bottomed upon specific grounds of negligence, viz., the failure to have a watchman at the crossing of Fillmore street when the accident happened as required by ordinance, and the failure to ring the bell as required by statute and city ordinance, and that, therefore, the allegation of negligence of defendant's servants in operating the train, although it states a cause of action at common law, should be ignored.
In McManamee v. Railroad, 135 Mo. 440, 37 S.W. 119, it was held that when a general averment of negligence in a petition is followed, as in this case, by an enumeration of specific acts of negligence the plaintiff will be restricted to proof of the facts so specified. See, also, Schneider v. Railroad, 75 Mo. 295; Waldhier v. Railroad, 71 Mo. 514. But in order to the restriction of the proof to the specific acts of negligence alleged there should be interposed at the time when offered, objection to the introduction of the evidence under the general allegation.
Defendant not only failed to object to the introduction of such evidence, but the court, at the request of both plaintiff and defendant, and also of its own motion, instructed the jury upon that theory of the case, and under the circumstances defendant must be held to have waived any and all objections to the introduction of such evidence.
The court at the instance of the plaintiff, of its own motion, and at the request of defendant, gave to the jury ten instructions, only two of which, number 1 given on the part of defendant, and number 3 on behalf of plaintiff, are criticized on this appeal. Number 1, given on the part of defendant, is as follows:
"Even should the jury find and believe from the evidence that the bell of the engine was not constantly sounded while the train was in motion, or was not sounded at intervals eighty rods before reaching Fillmore street, still the plaintiff can not recover, and you must find for the defendant, if Louis Dlauhi, from where he was struck, by looking or listening in an ordinarily careful manner, could either have seen or heard the train in time, if in its way, to have gotten out, or if not in its way, to have kept out of it."
Plaintiff's third instruction reads as follows:
"Although the jury may believe and find from the evidence in this case that the plaintiff, while crossing over defendant's tracks at their intersection with Fillmore street, within the city of St. Louis, stopped upon defendant's north-bound track to await the passage of a train upon the south-bound track, and although the jury may find from the evidence that the plaintiff, while so standing upon said track, was negligent in failing to look for an approaching train while so standing upon said track; yet, if the jury further find...
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