Humbird v. Union St. Ry. Co.

• Decision Date: 28 March 1892
• Parties: HUMBIRD et al. v. UNION ST. RY. CO.
• Court: Missouri Supreme Court

19 S.W. 69

110 Mo. 76

HUMBIRD et al. v. UNION ST. RY. CO.

Supreme Court of Missouri, Division No. 1.

March 28, 1892.

STREET RAILROADS — NEGLIGENCE — INSTRUCTIONS.

1. In an action by parents against a street-car company for the death of their minor son, caused by his being run over by a street-car, the petition alleged that the driver of the car "did negligently, recklessly, * * * and while he * * * was looking in another and different direction from the direction in which he was driving, drive the team of horses attached to said street-car at a high and unreasonable rate of speed, * * * and did run over and kill" the deceased. There was evidence tending to prove both the unreasonable rate of speed and the omission to look in the direction in which the car was going. Held error to refuse to instruct the jury that "any person driving a team upon a public street is bound to anticipate the presence of other vehicles and pedestrians in such street. The law requires that a person so driving should be watchful to see that the way is clear in the direction he is driving, and that he should regulate the speed at which he is driving; and if, under all the evidence in this case, you find that the driver of said car was driving the same at a rate of speed at which it could not be readily and quickly stopped, should occasion require; that such rate of speed was careless and dangerous, considering the number of persons and vehicles on said street; and you find that the injury to plaintiffs' son was caused by such negligence, and that plaintiffs are the father and mother of the child, — your verdict must be for the plaintiffs."

2. The error of refusing such instruction is not cured by charging the jury in an instruction on behalf of the defendant that the acts of negligence charged in the petition were that the driver was looking in a different direction from that in which he was driving, and was driving at an unreasonable rate of speed, and that, unless the jury found that the boy's death was the direct result of one or both of these acts of negligence, the verdict must be for the defendant, since the plaintiffs are entitled to have both of their charges of negligence affirmatively presented to the jury.

Appeal from circuit court, Buchanan county; OLIVER M. SPENCER, Judge.

Action by William Humbird and Charlotte Humbird against the Union Street Railway Company to recover damages for the death of Lewis Humbird. Defendant obtained judgment. Plaintiffs appeal. Reversed.

W. L. & S. P. Reynolds and Strong & Mosman, for appellants. Kelley & Kelley, for respondent.

BRACE, J.

This is an action by the parents for damages for the death of their minor son, Lewis, aged eight years, killed by the defendant's cars, in which there was a verdict for the defendant, and the plaintiffs appeal. The cause of action is thus stated in the petition: "Plaintiffs further state that on the ____ day of November, 1888, while Lewis Humbird was running and attempting to run across the defendant's side track or turn-out at or near the intersection of Sixth and Scott streets, in said city of St. Joseph, one of the defendant's servants, then and there in charge of a street-car, with horses thereto attached, was running and operating the said street-car by means of said horses, by and under the control of said defendant, and that said servant did negligently, recklessly, and wholly in disregard of the duty the said servant owed the said Lewis Humbird, and while he, the said servant, was looking in another and different direction from the direction in which he was driving, drive the said team of horses attached to said street-car at a high and unreasonable rate of speed on said side track or turn-out aforesaid, and did run over and kill the said Lewis Humbird instantly;" and that the death of said Lewis was caused solely by such negligence and recklessness. The answer was a general denial and a plea of contributory negligence. The evidence is not preserved in the bill of exceptions, which only contains the following statement in regard thereto: "The plaintiffs, to...