Duffy v. Missouri Pacific Ry. Co.

• Decision Date: 23 November 1885
• Citation: 19 Mo.App. 380
• Parties: PATRICK JOSEPH DUFFY, BY HIS NEXT FRIEND, WILLIAM H. MARLEY, Respondent, v. THE MISSOURI PACIFIC RAILWAY CO., Appellant.
• Court: Missouri Court of Appeals

19 Mo.App. 380

PATRICK JOSEPH DUFFY, BY HIS NEXT FRIEND, WILLIAM H. MARLEY, Respondent,

v.THE MISSOURI PACIFIC RAILWAY CO., Appellant.

Kansas City Court of Appeals, Missouri.

Nov. 23, 1885.

APPEAL from Jackson Circuit Court, HON. TURNER A. GILL, Judge.

Affirmed.

Statement of case by the court.

This was an action brought by the plaintiff by his next friend to recover damages for injuries sustained by him within the corporate limits of the City of Kansas, on the 5th day of February, 1870, by reason, as he alleges, of being struck by one of defendant's locomotives running at a reckless rate of speed, of not less than fifteen or eighteen miles an hour, wilfully and maliciously, without giving any notice at all of its approach, whereby one of his feet was run over and had to be amputated.

The answer was a general denial, and in addition thereto set up contributory negligence on the part of plaintiff, and averred that he was clinging to one of defendant's cars while in motion, and in endeavoring to get off, slipped and fell, and extended his leg on defendant's rail, and it was run over.

The plaintiff gave evidence tending to prove that the train was running from fifteen to eighteen miles an hour; that in crossing the track from the river side to the other, he was struck by the engine; that no whistle or bell was sounded.

The evidence of plaintiff tended to show also that the track from where he was hurt was straight for one-half mile or a mile; that it was in the day time; that plaintiff was a bright, active boy, nine years of age, with all of his senses, perfectly familiar with the tracks and the cars at that point and of the danger which attended crossing them. His mother testified: “He (the son) was a hearty, active boy, a good scholar and minded her; he was a shrewd, sharp boy; he was very much afraid of the railroad track, and he never went near it only the time of his injury, and he frequently cautioned me when I went near the railroad.”

Plaintiff's evidence further tended to show that he lived with his mother near the defendant's track and had for several months; that on the day of the accident, he had been visiting and in returning home, before going into the house, he went across the track down towards the river to attend a call of nature, and was approaching the track from the river on his return; that he crossed the track nearly at right angles; that just as he had gotten across the track, and was taking his foot off the rail, he was struck by an engine which was pulling a freight train containing, according to the estimate of some of the witnesses, twenty-five or thirty cars. At the point of injury there was a fill on the lower side, or side next to the river, the fill was ten or twelve feet; on the upper side it was only one and one-half or two feet, the difference in the fill caused by the slope of the hill to the river. That in crossing the track in the first place he went beyond it “about the width of the street.”

The defendant's evidence tended to show that the train was engaged in switching at or near the point of injury, and that the plaintiff, with other boys, was engaged in climbing on the cars for the purpose of playing, and in answer to a banter the boys had made to one another when the train was coming up. That the train approached the switch at about fifteen miles per hour, and that the bell was rung as usual in going through the city.

The court gave the following instructions for plaintiff:

“1. That, notwithstanding the plaintiff may have been guilty of contributory negligence in crossing the railroad track of the defendant at the time and place of the injury, yet the defendant is liable for the injury inflicted on the plaintiff, if the defendant could have prevented it by the exercise of reasonable care on the part of defendant's officers and agents after the discovery of the danger in which the plaintiff was placed, or if the defendant failed to discover the danger through its own gross recklessness or carelessness.”

“2. That if the jury believe from the evidence that the train or car by which plaintiff was injured was at the time being run at an unusual and reckless speed, and that no warning of the approach of the train was given by the sounding of a bell or blowing of whistle or otherwise, and that said train was being run in a thickly settled district where persons were accustomed to cross and recross, they may take into consideration all such facts as tending to show and prove negligence upon the part of the defendant.”

“3. That the law does not require from a child of tender years that degree of care and caution which it demands from a person of mature years, and the jury are to judge this case in the light of the evidence, having regard to the age, knowledge and discretion of the plaintiff and the circumstances surrounding the plaintiff at the time of the injury.”

“4. That it was the duty of the defendant, through its officers in charge of the train, on its approach to and entrance into the limits of a crowded city, to observe due caution and prudence, and to use all reasonable efforts to prevent injury to persons who might be on the track, and any failure in this respect, caused by gross neglect without contributory negligence upon the part of the person injured, would make the defendant liable to such person.”

“5. If the jury find for the plaintiff, they have a right in estimating his damages, to take into consideration the nature of his injury, whether permanent or otherwise, and any pain, agony or suffering he may have endured consequent upon the injuries received, and on the whole case, to award him such sum as in their judgment will be full compensatory damages under all the facts of the case, not exceeding the sum of $2,000.”

The court gave the following for defendant:

“1. The jury are instructed that the plaintiff cannot recover until he proves by preponderance of evidence that he was injured by the negligence of the defendant, and then he must at the time have been free from negligence himself, which directly contributed to his injuries; but as to what will constitute contributory negligence on the part of the plaintiff, you will consider his age, knowledge and discretion, and if you believe the plaintiff had that knowledge by which he knew the danger of the locality and knew how to avoid the same, then he is bound to the exercise of that knowledge, and a failure so to do constitutes contributory negligence on his part.”

“2. The jury are instructed that if at the time plaintiff was injured, he and the defendant were both to blame, were both in fault, and were both guilty of negligence which contributed directly to plaintiff's injuries, then the jury must find for the defendant.”

“3. The jury are instructed that it was the duty of the plaintiff, if possessed of that knowledge as mentioned in the first instruction, when about to cross the defendant's railroad track at the time he was injured, to use his eyes and ears to discover the approach of defendant's train, and if he failed to do so and was injured thereby, then you must find your verdict for defendant.”

“5. The burden of the proof is on the plaintiff, and to entitle him to recover he must prove to the satisfaction of the jury, by the preponderance of the evidence, that he was injured by the negligence or unskilfulness of the employes of the defendant in running and managing the locomotive of defendant, and that he, the plaintiff, was not at the time guilty of any negligence which directly contributed to the cause of his injury.”

“6. The jury are instructed that if they believe from the evidence that the plaintiff was injured while attempting to get upon or attach himself to one of defendant's moving cars; that plaintiff was not an employe upon any of defendant's engines or cars, or was not a regular passenger thereon, and in so doing either carelessly or accidentally slipped and fell, and his foot was caught and crushed by the wheels of defendant's cars; then the plaintiff cannot recover, and they will find a verdict for the defendant.” “7. The jury are instructed that plaintiff had no right to be upon the defendant's track at the time when and the place where he was injured, and having voluntarily put himself in a place of danger, it was his duty to exercise a degree of care proportionate to the danger he had so placed himself in, and if he failed to do so, then you must find for the defendant.”

The court refused the following for defendant:

“1. The defendant asks the court to declare the law governing this case to be that under the pleadings and evidence in this cause the plaintiff cannot recover.”

“2. If the jury believe from the evidence, that from the point on defendant's track, where plaintiff was injured, there was a plain view of the track from one-half to a mile east; that plaintiff entered upon defendant's track when the approaching locomotive and train of cars were so near to him that he was struck before he could cross the track; these facts constitute such negligence and want of ordinary care and prudence, as will preclude his recovery in this action, and they will find for the defendant notwithstanding they may further believe from the evidence that the locomotive and train of cars were running at a negligent rate of speed, and that there was no whistle sounded or bell rung.”

“3. Although the jury may believe from the evidence that people in the neighborhood were in the habit of crossing defendant's track at the place where the accident occurred, and that defendant or its servants and employes were aware of the fact, plaintiff nevertheless had no right to walk on or across said track; and if the jury believe that plaintiff did attempt to cross the same, then they are instructed that upon approaching the track and while crossing it it was plaintiff's duty to vigilantly * * * his senses in looking out for the approach of engine and cars; and if the jury believe from the evidence that when approaching...