Frick v. St. Louis, Kansas City & Northern Ry. Co.

• Decision Date: 30 April 1882
• Parties: FRICK v. THE ST. LOUIS, KANSAS CITY & NORTHERN RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

75 Mo. 542

FRICK

v.THE ST. LOUIS, KANSAS CITY & NORTHERN RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

April Term, 1882.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

The child was about two years of age at the time of the injury.

Wells H. Blodgett for appellant.

McGaffey & Steber for respondent.

RAY, J.

The accident and injury complained of in this case, is the same as that which constitutes the subject matter of the action in the case of Lulu Frick against the same defendant, (recently decided by this court at the October term, 1881, and not yet reported).^a1 The only difference between the two cases is, that in the former the little girl, who was injured by the accident in question, sought by her next friend, to recover the damages she had sustained by reason of the loss of an arm and a leg, the result of said accident; whilst in the present suit the father of that girl is seeking to recover the damages he has sustained by reason of his loss of her services, his care and trouble in nursing and taking care of his child, and the expenses incurred in her surgical and medical treatment consequent upon said injuries. In this case, as in the other, the defendant, at the close of plaintiff's testimony, offered an instruction in the nature of a demurrer to the evidence, which was overruled by the court, and excepted to by the defendant.

At the close of the evidence on both sides, the court gave for the plaintiff, over the objection of the defendant, the following instructions, to-wit:

1. If the jury believe from the evidence that in permitting their child to escape from the control of its mother, and wander upon the track of defendant's railroad, plaintiff or his wife failed to exercise that degree of care and prudence which people in their circumstances and condition in life should exercise toward their offspring, yet such want of care will not operate to defeat plaintiff's right of recovery in this action, if the jury further believe and find from the evidence that the accident by which the child was injured could have been prevented by the exercise of ordinary care and prudence on the part of the servants and employes of the defendant, in charge of the train which caused the accident.

2. It is not evidence of negligence on the part of the defendant, that it had not fenced its railroad at the locality where the alleged injury occurred. But if the jury find from the evidence that defendant, its agents or employes, notwithstanding said road was not required to be fenced, could, by the exercise of ordinary prudence and care, have avoided or prevented the injury to plaintiff's child, then they should find for the plaintiff; and should assess his damages at an amount which will fully compensate and indemnify him for the consequent loss of service and requisite care of the child, and expenses which the evidence shows, result from the injury, for a period not exceeding the minority of the child--that is, until she is eighteen years of age; and they should further allow the amount of expenses which the plaintiff has incurred, or become liable for, in consequence of the injury, such as for surgical attention, care, nursing and the like. And if they find for the plaintiff, he is entitled to the foregoing and no more, unless the jury further find that the plaintiff was guilty of negligence directly contributing to the injury.

3. In determining the question as to whether the defendant or its servants and employes were guilty of negligence or want of ordinary care and prudence in the premises, the jury are authorized to and should take into consideration the time of day, the place at which the accident occurred, the manner in which the train was being propelled, the number of dwelling houses in that vicinity, their distance from the track, and the signals and warnings of approaching danger which were given, if any. What would be ordinary care and prudence in running a train of cars in a sparsely populated locality, might be negligence in a more populous district. And it is for the jury to determine, in view of all the facts and circumstances of the case, whether defendant or its servants and employes did exercise ordinary care and prudence.

The court also gave for the defendant the following instructions, to-wit:

2. Although the jury may believe from the evidence that the plaintiff's child was run over and injured by defendant's cars, yet that fact alone does not entitle plaintiff to a recovery in this action; but before the plaintiff can recover he is bound to prove to the satisfaction of the jury that his child was injured in direct consequence of the negligence of the persons who were in charge of the train, and unless he has so proven, the verdict must be for defendant.

3. If the jury believe from the evidence that the persons in charge of the train were exercising care in running, conducting and managing the same, and that they did not discover the child upon the track or see her approaching the same in time to prevent the injury complained of, then the plaintiff cannot recover in this action, and the finding must be for defendant.

4. Defendant had a lawful right to run its trains upon its track, at the place where the injury occurred, either forwards or backwards, and the fact that said train was being run, at said time, with the engine in the rear of the flat cars, does not constitute any negligence on the part of the defendant, or on the part of those who were in charge of said train.

6. There is no evidence in this case tending to show that the plaintiff's child was wantonly or purposely injured by those in charge of defendant's train.

7. If the jury believe from the evidence that the persons in charge of the train were exercising ordinary care in running, conducting and managing the same; and that after the dangerous situation of the child was discovered by them, the train could not have been stopped in time to...