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
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