Drogmund v. Metropolitan St. Ry. Co.

• Decision Date: 05 November 1906
• Citation: 122 Mo. App. 154,98 S.W. 1091
• Parties: DROGMUND v. METROPOLITAN ST. RY. CO.
• Court: Missouri Court of Appeals

98 S.W. 1091

122 Mo. App. 154

DROGMUND v. METROPOLITAN ST. RY. CO.

Kansas City Court of Appeals. Missouri.

November 5, 1906.

On Rehearing, January 14, 1907.

1. CARRIERS—PASSENGERS—TRESPASSERS.

A boy boarding a street car with the consent of the gripman in charge thereof, who had no authority to grant the boy permission to ride on the car, is a trespasser, and not a passenger.

2. SAME—DUTY TOWARD TRESPASSERS.

A street railway company owes to a trespasser on a car the duty of exercising ordinary care to prevent injury to him while removing him from the car.

3. SAME—NEGLIGENCE.

A boy 12 years old recklessly boarded a street car, while in motion, with the permission of the gripman. The conductor, while the car was in motion, ordered the boy to leave the car, and seized a broom and advanced toward him in a threatening manner, repeating the order to leave. The boy dodged, lost his equilibrium, and fell from the car. Held, that the company was liable for the injuries received; the act of the conductor being in disregard of the rule requiring him to exercise ordinary care to prevent injury to the boy.

4. DAMAGES—LOSS OF SERVICES—INJURIES TO MINOR CHILD.

Where, in an action by a parent for injuries to a minor child, the evidence showed the boy's age, that he lived at home, and the extent of his injuries, an instruction authorizing a finding for the value of the loss of the child's services was not erroneous.

5. CARRIERS—PASSENGERS—TRESPASSERS—NEGLIGENCE —INSTRUCTIONS.

A boy 12 years old boarded a street car with the permission of the gripman, who had no authority to permit him to do so. The conductor, while the car was in motion, ordered the boy to leave, and seized a broom and advanced toward him in a threatening manner, repeating the order. The boy dodged, lost his equilibrium, fell from the car, and was injured. Held, that the court properly refused to charge that, as the boy was not a passenger, it was the duty of the conductor to prohibit him from riding, and, if the boy stepped from the car at the command of the conductor, there could be no recovery, for the act of the conductor was in violation of the rule requiring him to exercise ordinary care to prevent injury to the boy, though he was a trespasser.

6. TRIAL—INSTRUCTIONS — APPLICABILITY TO EVIDENCE.

The instruction was properly refused, because of want of evidence to support it.

On Rehearing.

7. DAMAGES—INJURIES TO CHILD — EXPENSES FOR NURSING.

A parent, suing for injuries to a minor child, is entitled to recover for the services of himself and family in nursing the child, though there is no evidence of the value of such services; the presumption being that the jury are reasonably familiar with the value thereof.

Appeal from Circuit Court, Jackson County; James H. Slover, Judge.

Action by F. M. Drogmund against the Metropolitan Street Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

John H. Lucas, for appellant. McCluer & Bowling, for respondent.

BROADDUS, P. J.

This is a suit by the father for damages for loss of services of his minor son, alleged to have been the result of the wrongful act of the defendant, whereby said son was severely and permanently injured. Owing to certain questions raised by counsel, it is necessary that a full statement of the substance of the cause of action should be set forth in this opinion. The plaintiff is the father of Otto L. Drogmund, a minor 12 years of age at the time of the alleged injury. "The defendant was operating at the time by means of a cable a street railway on Twelfth street in Kansas City, Mo., that its trains consisted of two cars, known respectively as a `grip car' and a `trailer.' That prior to the 30th day of January, 1900, the defendant's servants, in charge of and operating its cars on said street, invited and permitted boys to ride on its train at a certain point on its railroad near the east end of its line, where it made a loop for its cars to return west. That plaintiff's said son was among the number of boys that defendant's servants permitted and invited to ride on its trains while its cars were traversing said loop. That on the said 30th day of January, 1900, his said son, Otto L. Drogmund, boarded at Twelfth and Olive streets one of said trains going eastward to ride around said loop. That, when he was so riding, he stood upon the grip car, and rang the bell for the gripman, at the gripman's request, at the cross streets, and when it started westward. That, after it started westward, and after the cars had gone about the distance of two blocks, one Thomas Scanlon, defendant's conductor in charge told said Otto L. Drogmund to get off the car, and then stooped down as if he was picking up something, and then made a motion as if he was going to throw something at the boy, at the same time telling him to get off, and then picked up a broom and raised it as if to throw it at, or hit, said boy, at the same time approaching nearer to the boy, repeating his orders in a loud and peremptory tone to get off; and said boy, believing that said conductor was going to hit him with said broom, stooped down at the end of the seat to avoid being hit, and lost his hold, and fell off said train with great force and violence upon the pavement, bruising, wounding, and maiming his head, causing a fracture of his skull, etc. That said boy received said injury by reason of the carelessness and negligence of said defendant, its officers, agents, and servants, in the following particulars: By reason of the carelessness and negligence of permitting boys of tender years to ride upon its cars at the eastern end of said street railway, as aforesaid, and by reason of the carelessness, negligence, and wantonness of said Scanlon, in so frightening said boy on the train as aforesaid."

The evidence of the boy, Otto, was that he was permitted to ride on the defendant's cars as stated in the petition; that the gripman of the car permitted him to so ride, directing and permitting him to ring the bell at suitable times and places; that, at the time in question, he was riding on the car and ringing the bell, with the permission of the gripman, when the conductor told him to quit ringing the bell, but that he did not quit when so told, whereupon the conductor, Scanlon, seized a broom, and advanced toward him; that he and Scanlon were good friends, and, at the first, he thought the conductor was not in earnest, but he finally concluded that he was, and, as he had the broom in a threatening attitude, he dodged, lost his equilibrium, and fell from the car to the street pavement. The defendant's gripman and conductor deny that they permitted the plaintiff's son and other boys to ride on the car, but that they would, while the cars were making the loop, jump on and off; that, at the time the boy was injured, he got onto the grip car with other boys, while he was on the trailer; that, as he went forward, he took a broom in his hand, whereupon the other boys jumped from the car, but the plaintiff's son remained, when he raised the broom, not with the intention of hitting, as he was not in striking distance, but to scare him off; that the boy jumped off, and the cars proceeded on their way; and that he did not know at that time that he was injured. The defendant interposed a demurrer to plaintiff's evidence, which was overruled. The finding and judgment were for the plaintiff, from which defendant appealed.

The contention of defendant is that the facts in evidence show that the boy was a trespasser, and not a passenger, and, as the act of the conductor was not wanton, the demurrer should have been sustained. In Buck v. People's Street Railway, 108 Mo. 179. 18 S. W. 1090, it was held, where a small boy became a free passenger on defendant's street cars by consent of the driver in charge, that defendant became bound to exercise...