Dunn v. Cass Ave. & Fair Grounds Ry. Co.

• Citation: 21 Mo.App. 188
• Parties: JOHN DUNN, Respondent, v. CASS AVENUE AND FAIR GROUNDS RAILWAY COMPANY, Appellant.
• Decision Date: 09 March 1886
• Court: Court of Appeal of Missouri (US)

21 Mo.App. 188

JOHN DUNN, Respondent,

v.CASS AVENUE AND FAIR GROUNDS RAILWAY COMPANY, Appellant.

St. Louis Court of Appeals, Missouri.

Mar. 9, 1886.

APPEAL from the St. Louis Circuit Court, DANIEL DILLON, Judge.

Reversed.

LEONARD WILCOX, for the appellant: Even if the plaintiff's son was lawfully on the defendant's car, yet the judgment should be reversed for error in giving the plaintiff's instructions numbers four and seven. Fortune v. Railroad, 10 Mo. App. 252; Gerren v. Railroad, 60 Mo. 409; Insurance Co. v. St. Mary's Seminary, 52 Mo. 488-492; Clay v. Railroad, 17 Mo. App. 629. If the plaintiff's son was a trespasser on the defendant's car, then subdivision eight of section two of the ordinance had no application to this case. Consequently, instruction number four for the plaintiff should have been refused, and instructions numbers ten, fourteen, and seventeen of the defendant's refused instructions should have been given. Smith on Negligence, 1; Hallihan v. Railroad, 71 Mo. 116, 117: Thompson on Carriers, 443, sect. 4, note 1; Atkinson v. New Castle Water Works Co., L. R. 2 Ex. Div. 445; Henry v. Railroad, 76 Mo. 295; Snyder v. Railroad, 60 Mo. 419, 420; Braxton v. Railroad, 77 Mo. 458. Assuming that, as to the plaintiff's son, there was a violation of the eighth subdivision of section two of the city ordinance, yet as a matter of law, this was not a “proximate cause” of the accident. Hence, instructions numbers four and seven for the plaintiff should have been refused, and the defendant's instructions numbers fifteen, seventeen, and eighteen should have been given. 2 Thompson on Neg. 1085, sect. 2; Pearson v. Cox, L. R. 2 Com. P. Div. 370; McGrew v. Stone,53 Pa. St. 442; Railway v. Smith, 46 Mich. 509; Cooley on Torts, 69; Sharp v. Powell, L. R. 7 C. P. 253; Clemens v. Railroad, 53 Mo. 370; Ballentine v. Railroad, 40 505; Francis v. Transfer Co., 5 Mo. App. 11; The State v. Finn, 11 Mo. App. 546; Morrison v. Davis,20 Pa. St. 175. “There was no evidence that such an accident was probable, * * * nor was it a thing the probability of which must be known to all the world, so that the jury must be taken to know it without evidence.” Holman v. Railroad, 62 Mo. 564; Hoey v. Felton, 11 C. B. (N. S.) 146; Wallace v. Railroad, 74 Mo. 597. The duty imposed on persons to guard against accidents “must mean accidents which could have been easily foreseen.” Hallihan v. Railroad, 71 Mo. 116, 117; Swineford v. Franklin Co., 73 Mo. 283.

A. R. TAYLOR, for the respondent: The instructions leave it to the jury to find, first, whether or not there was a conductor or person acting as such on the south bound car; and if not, whether such failure to comply with the ordinance directly contributed to cause the injury. It is submitted that the instructions complained against are directly and precisely in consonance with the decision of this court in Fortune v. Railroad (10 Mo. App. 255). It frequently happens, as in the case at bar, that persons alight from one side of a car, and after so alighting pass in the other direction. Common prudence should have taught the conductor that the child would probably do so, and it was his duty to have stopped the car or warned the approaching car. In all such cases it is the correct practice to submit the issue of causation to a jury. Patten v. Railroad, 32 Wis. 524; Scott v. Hunter,46 Pa. St. 192; Lake v. Milliken, 62 Me. 240; Saxton v. Bacon, 31 Vt. 540. If there is any doubt as to whether the injury is the result of a negligent act, the question should be submitted to the jury. Clemens v. Railroad, 53 Mo. 370; Miller v. Martin, 16 Mo. 508.

THOMPSON, J., delivered the opinion of the court.

This was an action for damages for injuries sustained by the plaintiff's son, in consequence of being run over by one of the defendant's cars. The plaintiff had a verdict and judgment for one thousand dollars, and the defendant appeals.

The petition is as follows:

“The plaintiff states that the defendant is, and at the time hereafter stated was a corporation by virtue of the law of Missouri, and operated the street railways and cars hereafter mentioned. That prior to and on the ninth day of October, 1884, there was in force within the city of St. Louis an ordinance of said city entitled, ‘an ordinance in revision of the ordinances of the city of St. Louis and for the government of said city.'

That by section one, of article four, of chapter thirty-one of said ordinance, it was provided that no car shall be drawn at a greater rate of speed than six miles per hour. That the driver and conductor of each car shall keep a vigilant watch for all persons on foot, especially children, either on the track or moving towards it, and on the first appearance of danger to such persons to stop the car within the shortest time and space possible, and that conductors shall not allow ladies or children to leave or enter the car while the same is in motion.

And plaintiff avers that the defendant's car was, on the ninth day of October, 1884, moving southward on its track along Glasgow avenue, within the city of St. Louis, and that at a point on defendant's railway north of Penrose or Madison street in said city, the conductor of said car did permit the son of the plaintiff, Charles Dunn, of the age of nine years, to enter said car, and said child was by said car of the defendant carried to the crossing of Penrose or Madison street and Glasgow avenue in said city, and there the conductor of defendant's said car allowed said child to leave said car whilst it was in motion, and plaintiff avers that said violations of said ordinance directly contributed to cause plaintiff's child to be injured as hereinafter stated. And plaintiff avers that when said car reached the said crossing his said child left said car whilst in motion, and was proceeding eastwardly across said Glasgow avenue, when another of defendant's cars proceeding northward along the eastern track of defendant's railway on said Glasgow avenue in said city, did run against and upon him, the said Charles Dunn, and did so crush and mangle his leg that the same had to be amputated.

And plaintiff avers that the conductor and driver of said last named car of the defendant did negligently fail to keep a vigilant watch for persons on its said track or approaching same, and especially for plaintiff's said child, and that said conductor and driver of the defendant's car did negligently fail to stop said car within the shortest time and space possible, upon the first appearance of danger to plaintiff's said child, and after they saw the danger to said child or might, by the exercise of such vigilant watch, have seen the danger to said child and have averted same, did nevertheless fail and neglect to stop said car within the shortest time and space possible, as it was their duty to have done. And plaintiff avers that said failure to keep the provisions of said ordinance directly contributed to cause said injuries to his child.

And plaintiff avers that at the time said car did so run over and injure his child as aforesaid, it was being drawn at a greater rate of speed than six miles per hour within said city, and that said violation of said ordinance directly contributed to said injury to his child.

And plaintiff further avers that the agents and servants of the defendant in charge of defendant's said car, so going northward, could, by the exercise of ordinary care, have discovered that plaintiff's said child was approaching defendant's said track, and was in danger of being injured, as aforesaid.

And after such discovery of the danger to said child, could, by the exercise of ordinary care, have averted said injury to said child, yet neglected to do so, which said negligence directly contributed to cause said injury to plaintiff's said child.

That by reason of the injuries to his child aforesaid, plaintiff has been compelled to incur great expense for medicines, medical attention, and nursing, to-wit: the sum of two hundred and fifty dollars, in seeking to cure his said injuries. And said son has been permanently disabled from labor, and plaintiff has, by said injuries to his son, been damaged in the sum of five thousand dollars, for which sum he prays judgment.”

The answer admitted that the defendant was a corporation as alleged in the petition, but denied each and every other allegation of the petition. It then proceeded to aver that plaintiff's son, Charles Dunn, was a trespasser on defendant's car going south; that defendant had no notice of his being on the car; that he neither paid, nor offered, nor intended, to pay any fare, and although there was room inside, did not enter the car, but negligently remained on the outside and rear platform of said car, hanging on to the same on the lower step, concealing himself thereon; that he intended to ride and did ride thereon without paying his fare; that after riding a short distance on said car, he got off said car on the west side thereof, safe and uninjured, and instead of passing to the west sidewalk, voluntarily and negligently turned and ran east immediately behind the car on which he had been riding, and ran out from behind the same immediately into the horses of another car at the same instant going north on the eastern track; that the driver of this latter car could not have discovered plaintiff's said son in time to avoid injuring him. The defence of contributory negligence on the part of the boy was also set up.

The evidence tended to show that the plaintiff's son at the time of the injury was a bright lad of about nine years of age; that his mother had given him twenty-five cents, and that he had gone to the fair; that, arriving at one of the gates at the fair grounds, and having but twenty cents left, and being unable to get in he walked part of the way back, and seeing a south bound car of the defendant coming along at a trot, he jumped upon the rear platform and remained there while the car traversed the distance...