O'Flaherty v. Union Ry. Co.

• Decision Date: 31 October 1869
• Parties: EDWARD O'FLAHERTY AND WIFE, Respondents, v. THE UNION RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

45 Mo. 70

EDWARD O'FLAHERTY AND WIFE, Respondents,

v.THE UNION RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1869.

Appeal from St. Louis Circuit Court.

Cline, Jamison & Day, for appellant, cited Wright v. Malden Railroad Co., 4 Allen, 283; Trow v. Vermont Central Railroad, 24 Verm. 487; Buggs v. Taylor, 28 Verm. 180; Lucas v. New Bedford & T. R.R. Co., 6 Gray, 64; Gilman v. Deerfield, etc., 16 Gray,--; Garrell v. Manchester, etc., 16 Gray,--; Gallagher v. Boston, etc., 1 Allen, 187; Todd v. Old Colony, etc., 3 Allen, 21; 36 Mo. 484; Holly v. Boston Gas-Light Company, 8 Gray, 123; Hatfield v. Roper, 21 Wend. 615; Lehman v. Brooklyn, 29 Barb. 236; Boland and Wife v. Missouri Railroad Company, 36 Mo. 484; Bliss v. Hibbraham, 8 Allen, 564; Haley v. Earle, 30 N. Y. 208; Pool v. North Carolina Railroad Company, 8 Jones' L. R. 340.

McBride, for respondent, cited Huelsenkamp v. The Citizens' Railway Company, 34 Mo. 45; same case, 37 Mo. 554; Boland and Wife v. Missouri Railroad Company, 36 Mo. 484; Meyer v. Pacific Railroad Company, 37 Mo. 151-4; Liddy v. St. Louis Railroad Company, 40 Mo. 506; id. 153; Morrissey v. Wiggins Ferry Company, 43 Mo. 380.WAGNER, Judge, delivered the opinion of the court.

This was an action by plaintiffs, as parents, to recover from defendants, an incorporated street railroad company, the statutory penalty of $5,000 for killing their child, a little girl aged about two years and eight months. The evidence shows that the accident occurred on Carr street, in the city of St. Louis; that the mother of the child dressed it, and sent it, under the protection of an elder sister about eight years of age, to a lot across the street to play and get fresh air; that after being there for a time the child, unobserved by its elder sister, escaped and undertook to make its way home across the street. While crossing the street, and on the railway track, one of defendant's cars came along and ran over it, completely crushing its skull. It is also most clearly established by the testimony that the car was being driven at a rapid rate. Some of the witnesses say that the team was running; others, that it was going at a very fast trot, and that the driver, instead of looking ahead and having his hand on the brake, in order to avoid accidents, was looking behind through the car, and holding on the dashboard to maintain his position. When the car was from thirty to fifty feet distant from the child, there was a woman looking out of an upper story window on the street, who saw the danger and cried out, trying to give the alarm to the driver; but his mind was diverted to another direction, and no effort was made to stop the car till the child was run over and killed outright. It further seems that the street over which the car was traveling was an up-hill grade, and had the car been driven with proper speed, and had the driver exercised prudence, management and care, the accident might easily have been avoided and the child's life saved.

On behalf of the plaintiff, the court, in substance, instructed the jury that if the child's death was caused or occasioned by the negligence, carelessness, or unskillfulness of the driver, servant, or employee of the defendant whilst running its car on the railroad, and whilst the same was in his charge as driver, and without negligence on the part of the child or its parents, then the jury should find for the plaintiffs; that, although the jury might believe from the evidence that the plaintiffs or their deceased child were guilty of neglect or imprudence which contributed remotely to the death of the child, yet if the servant, employee, or driver of the defendant was guilty of misconduct or carelessness in the management of the defendant's car, which misconduct or carelessness was the immediate cause of the death of the deceased, and with the exercise of ordinary prudence and care on the part of said servant, employee, or driver, the death of the child might have been avoided, then the defendant was liable. To these instructions the defendant at the time excepted.

For the defendant the court instructed the jury that before the plaintiffs could recover in the case, they must establish affirmatively two facts, to-wit: First, that the deceased child came to its death from the careless acts or conduct of defendant's agents or servants in the management of its car; second, that neither of the plaintiffs, nor the little girl in charge of the deceased child, nor deceased child itself, was guilty of any negligence or carelessness immediately contributing to the injury and death of the child.

The defendant asked two additional instructions. The first was that if the jury found from the evidence that the deceased child was but two years and eight or ten months old, and that it was sent upon the streets in the city of St. Louis by its mother, in charge of a sister eight years old, and, while thus attended, it was left alone upon the streets, or was permitted to go out of the yard where its sister was engaged at play, and while thus alone it attempted to cross a public thoroughfare in said city traversed by street cars and other vehicles drawn by horses, unattended by any one sufficiently near to protect it from harm,...