Graney v. St. Louis, Iron Mountain and Southern Railway Company

• Decision Date: 30 June 1900
• Parties: GRANEY et ux. v. ST. LOUIS, IRON MOUNTAIN AND SOUTHERN RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

57 S.W. 276

157 Mo. 666

GRANEY et ux. v. ST. LOUIS, IRON MOUNTAIN AND SOUTHERN RAILWAY COMPANY, Appellant

Supreme Court of Missouri

June 30, 1900

Appeal from St. Louis County Circuit Court. -- Hon. Rudolph Hirzel Judge.

Reversed and remanded (with directions).

Martin L. Clardy and Henry G. Herbel for appellant.

(1) Under the facts of this case, instruction numbered 1 was a correct statement of the law, and the court, therefore, erred in sustaining the motion for a new trial on the ground that it was not. The deceased, with his comrades, was at the crossing before the train. His comrades testified that they saw the train approaching, and they all said that it was running very rapidly. It is fair to assume that deceased saw the train and that he also knew that it was moving at a rapid rate of speed. Graney et ux. v. Railroad, 140 Mo 100. He was nearly twelve years old; he had been reared near the railroad tracks; he was familiar with the running of trains on the Iron Mountain road; indeed, he was in the habit of "hopping" on moving trains, and excelled all his associates in that practice. Spillane v. Railroad, 135 Mo. 414. Like every one else, a child must exercise such care as may reasonably be expected of its age and condition and whether it has done so in a given case is sometimes a question for the jury. His age and intelligence, however, may be such that the court will hold, as a matter of law, that his action in contributing to his own injury precludes a recovery. Shearman & Redfield on Negligence, sec. 73; Nagle v. Railroad, 88 Pa. St. 35; Elliott on Railroads, sec. 1261; Powers v. Railroad, 59 N.W. 307; Tucker v. Railroad, 26 N.E. 916. (2) Instruction numbered 6 announces an admittedly correct principle of law, if it be true that the "man of ordinary prudence and circumspection" referred to in it is the person in charge of the train. Hoag v. Railroad, 85 Pa. St. 293; Railway Accident Law (Patterson), sec. 14. (3) The verdict is clearly right on the evidence, and errors, if any, in the instructions will be treated as harmless. Section 2303, R. S. 1889; McGrew v. Railroad, 109 Mo. 589; Bradford v. Floyd, 80 Mo. 207; Noble v. Blount, 77 Mo. 235; Frick v. Railroad, 75 Mo. 595; Sparling v. Conway, 75 Mo. 510; Nelson v. Foster, 66 Mo. 381; Gray v. Railroad, 64 Mo. 47; Dunbar v. Wightman, 51 Mo. 432; Hedecker v. Ganzhorn, 50 Mo. 154; Tate v. Barcroft, 1 Mo. 163; Beiler v. Divoll, 40 Mo.App. 251; Cheek v. Waldron, 39 Mo.App. 21. (4) The defendant, on this appeal, has a right to insist that, under the pleadings and the evidence, there was no case for the jury, and if this point be established, the action of the court in awarding a new trial must be reversed. Payne v. Railroad, 136 Mo. 562; Spillane v. Railroad, 135 Mo. 414; Ridenhour v. Railroad, 102 Mo. 270. It has been held that a boy between eleven and twelve years of age will be presumed to know the danger he incurs in going upon a railroad track immediately in front of a running train. Masser v. Railroad, 68 Ia. 602; Tucker v. Railroad, 124 N.Y. 308. While the record in the former case gave the court "No information in respect to his intelligence, knowledge of running trains or physical activity," the record of the case now is replete with facts which attest the character and intelligence of the deceased, his familiarity with the running of trains, and his "physical activity" in hopping upon trains. Maxey v. Railroad, 113 Mo. 1; Bond v. Railroad, 105 Mo. 371; Williams v. Railroad, 93 Mo. 279; Yancey v. Railroad, 93 Mo. 433; Kelly v. Railroad, 80 Mo. 547; Hixson v. Railroad, 80 Mo. 340. The persons for whose death the railroad companies are made liable are those on the track and those crossing the track who are struck by the train, and not persons who stand alongside the track, awaiting the passage of trains. Bell v. Railroad, 72 Mo. 50; Hodges v. Railroad, 71 Mo. 50; Bower v. Railroad, 69 Mo. 219; Johnson v. Railroad, 13 A. & E. R. R. Cas. 623; Railroad v. Feathers (Tenn.) 15 A. & E. R. R. Cas. 446; Railway Accident Law (Patterson), sec. 160. (5) The contributory negligence of the deceased ought to defeat plaintiffs' recovery. Yarnell v. Railroad, 75 Mo. 583; Guenther v. Railroad, 108 Mo. 18; Prewitt v. Eddy, 115 Mo. 283; Dlauhi v. Railroad, 105 Mo. 645; Ridenhour v. Railroad, 102 Mo. 270; Payne v. Railroad, 129 Mo. 421; Spillane v. Railroad, 135 Mo. 414. (6) The court is not bound to adopt plaintiff's theory of the cause of the accident, but will take judicial notice of the scientific facts involved to determine whether the theory advanced can be sustained. Nugent v. Milling Co., 131 Mo. 253; King v. Gallan, 109 U.S. 99; Terhune v. Phillips, 99 U.S. 592; St. Louis Gas Light Co. v. Ins. Co., 33 Mo.App. 348; Underhill on Evidence, p. 371; 1 Greenleaf on Evidence (15 Ed.), sec. 5; Garth v. Caldwell, 76 Mo. 622.

William B. Thompson and Ford W. Thompson for respondents.

(1) The appellant, from an order directing a new trial, is required to show error as to the grounds thereof set out in the record of the trial court, whereupon respondent may show that, notwithstanding the reasons given and entered upon the record, the new trial should have been ordered on other grounds set out and complained of in his motion for a new trial. Miller v. Madison Car Co., 130 Mo. 517; Candee v. Railroad, 130 Mo. 153; Bradley v. Repell, 133 Mo. 545; Ittner v. Hughes, 133 Mo. 619. (2) When the trial court has exercised its discretion in favor of respondent and directed a new trial, the propriety of its action is conclusive, and this court will not interfere, unless it can be shown that such action is arbitrary, and manifestly and clearly wrong, and the presumption in favor of the trial court's action is perhaps stronger where it has granted a new trial than where it has refused one, because it is better able to judge of the weight and effect of the error which it has committed, having heard the argument of counsel based upon it, and observed its probable effect upon the jury. Ensor v. Smith, 57 Mo.App. 584; Huckshold v. Railroad, 90 Mo. 548; Bank v. Armstrong, 92 Mo. 265; Langdon v. Kelley, 51 Mo.App. 572; Shepherd v. Brenton, 15 Iowa 91. (3) The reasons given by the trial court were based upon the errors contained in defendant's instructions 1 and 6. These instructions contain very erroneous statements of the law, which could not have failed to influence the jury in determining their verdict. (a) The error contained in instruction No. 1 consists in stating to the jury that the law did not permit the boy to presume that the train was running at the legal rate of six miles per hour, but made it his duty to look and discover whether or not it was obeying the law; the law does permit such a presumption to be indulged, and places no such duty upon plaintiff. O'Connor v. Railroad, 94 Mo. 150; Eswin v. Railroad, 96 Mo. 296; Schlereth v. Railroad, 96 Mo. 509; Kellny v. Railroad, 101 Mo. 67; Kenny v. Railroad, 105 Mo. 270; Crumpley v. Railroad, 111 Mo. 152; Jennings v. Railroad, 112 Mo. 268; Lynch v. Railroad, 112 Mo. 420; Sullivan v. Railroad, 117 Mo. 214; Weller v. Railroad, 120 Mo. 635. (b) The error complained of in defendant's instruction 6 consists in not only directing the jury that plaintiffs could not recover even though defendant's negligence directly occasioned the injury, as set out in the petition, if defendant could not reasonably have expected such a result to follow its unlawful action, but also in permitting the jury to consider the probability of such a result, since the very fact that defendant was liable if its negligence directly occasioned the injury was decided by this court upon the former appeal, hence res adjudicata. Granley v. Railroad, 140 Mo. 89; Chapman v. Railroad, 146 Mo. 481. That defendant is liable for all injury which directly results from its negligence, is a proposition of elementary law.

SHERWOOD, J. Burgess, J., concurs except as to the remarks about the instructions; Robinson and Marshall, JJ., concur; Valliant, J., concurs in the result; Gantt, C. J., concurs in the result only; Brace, J., dissents.

OPINION

In Banc

SHERWOOD J.

This case has been here before (140 Mo. 89, 41 S.W. 246), and is known among the members of the bar of this State, as the "suction case." It is an action for $ 5,000 damages for the death of James Graney, the minor son of plaintiffs, alleged to have been caused by his being "drawn or sucked into and under defendant's train by the force and velocity of said train which was moving at a reckless rate of speed," etc.

The petition charges that, on the eighteenth day of January, 1891, there were in force three valid ordinances in the city of St. Louis: One prohibiting any car or cars, or locomotive propelled by steam power, to be run at a rate of speed exceeding six miles per hour; another, requiring such locomotive to ring a bell constantly while running in the city limits; and the third, imposing a penalty for violation of either of the other two; and it also alleges the circumstances under which the son of plaintiffs was killed, to be as follows:

"On the eighteenth day of January, 1891, while said plaintiffs' minor son, James Graney, was standing in and upon the crossing of said Dorcas street, alongside of the track of the said railway operated by the said defendant, and at a sufficient and proper distance away from the said track and away from the locomotive and cars operated by the said defendant and while exercising due and proper care, and relying upon the duty of the said defendant to operate its locomotive and cars according to said ordinances, at a rate of speed not in excess of the rate provided for in the said ordinances, he was by reason of the reckless and dangerous speed of the locomotive and train of cars operated...