Hogan v. Citizens' Ry. Co.

• Decision Date: 23 May 1899
• Citation: 51 S.W. 473,150 Mo. 36
• Parties: HOGAN et al. v. CITIZENS' RY. CO.
• Court: Missouri Supreme Court

51 S.W. 473

150 Mo. 36

HOGAN et al. v. CITIZENS' RY. CO.

Supreme Court of Missouri, Division No. 1.

May 23, 1899.

STREET RAILROADS — HARMLESS ERROR — SPEED OF CAR — RINGING BELL — NEGLIGENCE OF PARENTS — INSTRUCTIONS.

1. Failure of a street-car company to equip its car with a fender, which would have prevented the injury complained of, is not, in the absence of an ordinance or statute requiring it, negligence.

2. Where, on cross-examination, a witness for defendant says that he testified in a certain way before the coroner, and his testimony on the trial is substantially the same, it is harmless error to allow counsel for defendant to read his testimony before the coroner; Rev. St. 1889, § 2303, providing that the supreme or appellate court shall not revise a judgment unless it believes that the alleged error materially affected the merits.

3. In an action to recover for injuries alleged to have been caused by the negligence of defendant's motorman and conductor, it is competent for the motorman (who has been shown to be experienced), after testifying to what was done, to testify that there was nothing else that he could have done, under the circumstances, to prevent the injury, as such testimony does not preclude the jury from finding from the other testimony that he could have done something which he failed to do.

4. In an action to recover for personal injuries, plaintiff alleged that defendant was negligent in running its cars at a greater rate of speed than was permitted by an ordinance. The evidence disproved this allegation. Held, that the court properly took the question of negligence on account of the speed of the car from the jury, as plaintiff was not entitled to rely on common-law negligence as to its speed.

5. A complaint alleged that defendant was guilty of negligence in failing to ring the bell on its gripcar as it approached the crossing where the injury occurred. Plaintiff's witnesses testified that they did not hear the bell, but admitted they were not paying attention, while defendant's witnesses testified that the bell was rung twice, which was the usual signal at a crossing. Held, that an instruction, at defendant's request (plaintiff making none), that, if the jury found from the evidence that the gripman rang the bell as the train approached the crossing, it must find for defendant on that issue, is not erroneous.

6. It is not error to refuse to give an instruction, though it states the law correctly, where there is no evidence in the case on which to predicate it.

7. An instruction that defendant is liable, even though the parents of the child killed were negligent in permitting it to be on the street unattended, if the person operating defendant's car which killed it was negligent, and his negligence was the immediate cause of the injury, and by the exercise of ordinary care and precaution the injury might have been avoided, is properly refused because it excludes the principle that defendant would be liable if, after the discovery of the danger in which the child was, the exercise of ordinary care would have averted the injury, and it failed to exercise such care, or if it failed to discover the danger through its own recklessness, when by the exercise of ordinary care it could have discovered the danger and averted it, and because it makes defendant liable, if negligent, though the negligence of plaintiff contributed to the injury.

Appeal from St. Louis circuit court.

Action by Cornelia Hogan and another against the Citizens' Railway Company. From a judgment in favor of defendant, plaintiffs appeal. Affirmed.

Damages for death of plaintiffs' child. The plaintiffs, as the father and mother of Floyd B. Hogan, sue the defendant, a corporation operating a cable street railway in St. Louis, under section 4425, Rev. St. 1889, to recover $5,000 for the death of their child, a minor seven years of age, which occurred on the 5th of June, 1893, at the corner of Twelfth and Morgan streets, by being run over by one of defendant's train of cars, which was composed of a grip car and a trailer. The petition charges four acts of negligence by defendant: (1) Running the cars at a greater rate of speed than is allowed under the city ordinances; (2) failure of the conductor and motorman to keep a vigilant watch for all persons on foot, especially children, either on the track or moving towards it, and, after the gripman and conductor saw, or by keeping a vigilant watch for children might have seen, their child, failure to stop the train of cars in the shortest time and space possible, as the city ordinance requires; (3) failure "to ring the bell or give any signal or sufficient warning of the approach of the cars," although running in a thickly-settled part of the city, where the street was being constantly crossed by women and children and the public generally; and (4) failure "to use ordinary care in providing said gripcar with a fender to prevent its running over the children it had run down and upon." On motion the court struck out the fourth act of negligence pleaded, and the plaintiffs saved an exception to the ruling. The answer admitted the incorporation and business of the defendant, and that the deceased came to his death from injuries received "by one of defendant's cars," but denied generally the other allegations of the petition. Contributory negligence by the deceased and by his parents, the plaintiffs, was affirmatively averred by the defendant. A proper reply was filed.

The trial developed the facts following: Plaintiffs offered in evidence Ordinance No. 13,896, which ordinance gives the defendant the right to operate its line of railroad by cable, and providing, by section 6, as follows: "The city of St. Louis reserves the right to regulate the running of cars, and the rate of speed at which cars shall be run on said railroad." Ordinance No. 14,600, offered in evidence by plaintiffs, provides that defendant may run its cars on Morgan street, from Garrison avenue to Fourth street, at a rate of speed not exceeding 8½ miles an hour. Plaintiffs also offered in evidence Ordinance No. 17,188, which ordinance, so far as material to this case, is as follows: "An ordinance in revision of the ordinances of the city of St. Louis, and to establish new ordinance provisions for the government of said city." "Sec. 1274. Every person, corporation, company, or co-partnership engaged in the business of transporting passengers from any one point to any other point within this city, for hire, on street railways, shall be subject to all of the conditions, stipulations, and requirements of this article. Sec. 1275. The following rules and regulations concerning the running of street-railway cars shall be binding upon every person, corporation, company, or co-partnership taking out license under the provisions of this article." Paragraph 4: "The conductor, motorman, gripman, or driver, or any other person in charge of each car, shall keep a vigilant watch for all vehicles and persons on foot, especially children, either on the track or moving towards it, and, on the first appearance of danger to such persons or vehicles, the cars shall be stopped in the shortest time and space possible." Plaintiffs also offered in evidence an acceptance by the defendant of Ordinance No. 13,896, dated May 9, 1887, but no express acceptance of Ordinance No. 17,188 was shown. Defendant's train was proceeding eastwardly on Morgan street. The day was clear and bright. A crowd of from 50 to 1,000 people, according to the estimate of different witnesses, had gathered on the northeast corner of Twelfth and Morgan streets, in consequence of an arrest of a man and woman. There was a police signal box on the east side of Twelfth street, about 12 to 25 feet north of the building line of Morgan street, to which the policeman had carried the persons arrested, to signal for a police patrol wagon to take the prisoners to the lockup; and the crowd had followed the policeman and his prisoners, and were crowding around and upon them. There were only 4 or 5 persons on the sidewalk on the north side of Morgan street, but there was no one on the roadway of the street. There were no persons on the railroad track or approaching it. As the train approached the west side of Twelfth street, the gripman rang the bell twice (the usual signal on approaching a crossing); and then, holding the brake lever in his right hand and the grip lever with his left hand, he slowed the train down from a speed of 8½ miles an hour (its authorized speed, under the ordinance, at that point) to about half that speed. There is a conflict in the testimony as to whether he was looking ahead of the train, or was leaning towards the left, looking up Twelfth street, at the policeman, with his prisoners, and the assembled crowd. In this way and at that speed he crossed Twelfth street, and when the train was within a few feet of the east side of Twelfth street the policeman suddenly brandished his club; the crowd as suddenly rushed back into Morgan street, "all around the car"; the gripman dropped the rope entirely, and with both hands applied the brake, and stopped the train as quickly as he could. But the deceased child had in the meantime run out into the roadway of Morgan street, with the surging crowd, and was struck by the front of the gripcar and knocked down; and when the car was stopped he was found under the forward end of the gripcar, resting against the lifeguard, a contrivance or V-shaped guard which was placed under the car, in front of the fore wheels, to keep them from running over any one that might be caught under the car. The wheels of the gripcar did not, in consequence of this lifeguard, run over the child. The gripman never saw the child at any time before the injury, and did not know the child was under the car until the crowd hallooed and the train was stopped. The plaintiffs objected to certain testimony introduced by the defendant and...