Donahoe v. Wabash, St. Louis & Pacific Ry. Co.

• Decision Date: 31 October 1884
• Court: Missouri Supreme Court
• Parties: DONAHOE et al. v. THE WABASH, ST. LOUIS & PACIFIO RY. CO., Appellant.

83 Mo. 543

DONAHOE et al.

v.THE WABASH, ST. LOUIS & PACIFIO RY. CO., Appellant.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Chariton Circuit Court.--HON. G. D. BURGESS, Judge.

AFFIRMED.

H. S. Priest for appellant.

Appellant's demurrer to the evidence should have been sustained because (1) there was no proof of negligence as charged in the respondent's petition. Yarnall v. R. R., 75 Mo. 575; Moore v. R. R., 4 Am. & Eng. Ry. cases, 569; Morrissey v. R. R. Co., 126 Mass. 377. (2) Because of the palpable contributory negligence on the part of the respondents. Bellefontaine Ry. Co. v. Snyder, 24 Ohio St. 670; Moore v. Metropolitan Ry. Co., 2 Mackey (Dist. Col.) 437; Smith v. Ry. Co., 2 Am. & Eng. Ry. Cas. 12; Ry. Co. v. Brown, 49 Ind. 154; Hunt v. Greer, 72 Ill. 393; Callahan v. Bean, 9 Allen 401; Wright v. Ry., 4 Allen 283; City of Chicago v. Starr, 42 Ill. 174; Morrison v. Erie Ry. Co., 56 N. Y. 302; Ry. v. Hanlon, 53 Ala. 70; Ry. v. Brown, 40 Ind. 545; Ry. v. Huffman, 28 Ind. 287; Ry. v. Vining, 27 Ind. 513. The first instruction given at the instance of respondents is obviously erroneous and misleading in the statement of the law applicable to the case. It ignores the issue of contributory negligence. Clark v. Hammerle, 27 Mo. 70; Sawyer v. Ry., 37 Mo. 263; Fitzgerald v. Hayward, 50 Mo. 523. It was, also, misdirecting in the employment of the following language, viz: “And that the injuries to said child could have been avoided by the use of proper care.” It was the duty of the court to define for the jury in definite terms the measure of care required of the appellant. Devitt v. Ry., 50 Mo. 305; Marshall v. Shricker, 63 Mo. 311; Yarnall v. Ry. 75 Mo. 583; Wiser v. Chesley, 53 Mo. 547; Mueller v. Ins. Co., 45 Mo. 88. The respondent's second instruction was wrong. Walters v. Ry. Co., 41 Ia. 78. No greater care is required to discover a child than an adult, but greater care would be required after the child was discovered than towards the adult. R. R. v. Huffman, supra. The instructions given by the court of its own motion were, also, erroneous. The first because (1) in assuming the child was in a dangerous position upon or near the track, and requiring the servants upon such declared fact to stop the train and pronouncing it negligence not to have done so; (2) in requiring care and watchfulness to discover the child upon or near the track. It, also, improperly holds appellant liable unless its servants “““made use of all the appliances at their command to stop the train.” Bell v. Ry., 72 Mo. 61.

U. S. Hall and John Montgomery for respondents.

The instructions given by the court fully and directly declared the law applicable to the case. It was the duty of the servants of appellant in charge of the train to have been at the time of the accident in the exercise of ordinary care and watchfulness, and if the accident could have been avoided by the exercise of such care, which they failed to use, the appellant is liable. Gorman v. Ry., 26 Mo. 448; Shearman & Redf. on Negligence, sec. 477; Frick v. St. L., K. C. & N. Ry. Co., 75 Mo. 595; Isabel v. H. & St. J. Ry. Co., 60 Mo. 483; Hicks v. Pac. Ry. Co. 64 Mo. 439; Maher v. A. & P. Ry. Co., 64 Mo. 276; Brown v. H. & St. J. Ry. Co., 50 Mo. 467; Butler v. Ry. Co., 28 Wis. 498; Ry. v. Irish, 72 Ill. 407; Isbell v. Ry. 27 Conn. 405; Ill. Ry. v. Middlesworth, 46 Ill. 498; Marcott v. Ry., 4 Am. & Eng. Ry. cases, 448. The second instruction given for respondents and the sixth given for appellant declare the law as it has been time and again recognized and approved by this court. Boland v. Mo. Ry. Co., 36 Mo. 489; Stillson v. H. & St. J. Ry. Co., 67 Mo. 674; O'Flaherty v. Union Ry. Co., 45 Mo. 73; Isabel v. H. & St. J. Ry. Co., 60 Mo. 483; See, also, Morgan v. Ills. & St. Louis Bridge Co., 5 Dillon 96, and cases cited. There was no contributive negligence to sustain the plea of defendant.

HENRY, J.

Plaintiffs sued defendant in the circuit court of Chariton county for negligently killing their child, near Centralia, in Boone county. The petition alleges that, on the 27th day of March, 1881, said child went upon the railroad, near the front of a section house in which the parents resided, and, without any fault, or negligence of plaintiffs was run over by a train of defendant's cars, in consequence of the negligence and unskilfulness of the servants of defendant in charge of said train. The negligence specially alleged was running the train at an unusual rate of speed, a failure to ring the bell or sound the whistle, or, by other means to avert the calamity, although repeatedly and timely warned of the position of the child and its great danger.

The answer pleaded contributory negligence on the part of plaintiffs in permitting the child to go, unattended, upon or near the track, where there was no public street or highway, plaintiffs knowing that defendant's trains were frequently passing, and that the engine and train were, at the time, managed with ordinary care. On a trial of the cause, plaintiffs obtained a judgment from which this appeal is prosecuted.

The testimony for plaintiffs was substantially as follows: The child was about two and a half years old. Con Donahoe was, and for nearly four years had been, defendant's section foreman, and had lived in the section house when the child was killed about four years. On the day of the accident, Mrs. McAuliff, with two of her children were on a visit at Donahoe's. Mrs. Donahoe testified that she heard the train coming about four o'clock in the afternoon, and missing the children, stepped out on the track, which was about twenty-five feet from the house, to look for them. That her child had not been out of the house ten minutes when she heard the train, which was an extra freight going east. That when she first got on the track, the child was at the side of the track, about fifty yards west of her. “The train was about a quarter of a mile off when I first came upon the track, as near as I can tell. I saw some other children at or near the place where my child was, three of mine and two others; all of them were near the track where the child was; three other children were not very far from the track--about two feet, as near as I can tell; it was a warm, bright day; the ground at this point was smooth and level and the track straight; the country around is prairie land. When I first came on the track the train was moving toward my child; I made for my child as hard as I could run, with hands up and screaming; I ran on the track; there was no whistle sounded or bell rung and no letting off of steam at the cylinder cock at the side; I went up the track as fast as I could, making for my child; had just stepped off the track when the train came up; had not got hold of my child, only hold of the corner of his apron; was trying to get hold of him to pull him off, when he was struck; he was on the side of the track, climbing over the iron rail, aiming to cross the track.”

Mrs. Ellen McAuliff testified that she was at the section house of Con. Donahoe at the time; “the land there is level; was in the kitchen with Mrs. Donahoe when I heard the train; after hearing the train I held Mrs. Donahoe's baby; when she hallooed to the children the train was coming; I laid the baby down and came to the track and ran with her on the track toward the children; both of us were throwing up our hands and hallooing all the time. When we first came out of the house we were thirty to fifty yards from the children; the train was about a quarter of a mile from the children; did not know whose child it was on the track; we kept on the track until the train was so close we had to step off, and I saw Mrs. Donahoe make one grab at the child and missed him. She was struck by the engine and thrown by the ties in the ditch; the cow-catcher struck the child, and I was right behind it and picked it up; there was no bell ringing or whistle sounded, and no steam let off, until after the child was struck; they whistled when they got to the east side of the section house, and did not come to a full stop until they got down near to the whistling post; it was a nice, clear, sunshiny day.”

Mrs. Elizabeth Gregg McAuliff testified as follows: “When I first saw Daniel Donahoe he was about six feet from the centre of the track; when he was struck he was about four feet from the centre; when I first saw the train I ran out upon the track and raised my hands and clapped them together; it was a passenger engine.” Cross-examination: “When I first heard the train I was with Mrs. Donahoe and Mrs. McAuliff in the house. When I went to the door they were on the track going ahead, waving their hands, hallooing to the children to go back. When I came out of the door I saw the train coming, and I waved my hands. The train was coming down the grade as fast as it could come. A passenger could not have gone any faster. Saw the child as soon as I came to the door. Was on the north side of track. When the child was struck he was climbing up between the ties; had his hands on the ends of the ties; it was 200 yards from where the child was struck before the train was stopped; all the wounds I saw on the child were on his face and head.”

William Powers testified that an object, even a chicken, could have been seen on or near the track at the place where the child was killed, by a person standing on the engine, a half a mile or more, and that he did not notice that the speed of the train was slackened before the child was killed. Mr. Donahoe's testimony was to the same effect, as to the distance at which an object could have been seen on the track that afternoon and the testimony on that point is uncontradicted.

For defendant, T. Murray testified that he was engineer on that train. But at the time of the trial had been out of its employment seven or eight months. “Train was going east and I sat on right or south side of engine, which is the regular place for the engineer to sit. I...