Jaffi v. Missouri Pac. Ry. Co.

• Decision Date: 11 June 1907
• Citation: 103 S.W. 1026,205 Mo. 450
• Parties: JAFFI v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

103 S.W. 1026

205 Mo. 450.

JAFFI v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri, Division No. 2.

June 11, 1907.

1. RAILROADS — INJURY TO PERSON IN STREET — EVIDENCE — SUFFICIENCY.

In an action against a railroad for killing plaintiff's minor son, a verdict finding that decedent was attempting to cross defendant's railroad track in a street just north of certain stationary cars, which without any warning or notice or brakeman to give notice were suddenly and violently backed against the child and then moved south, dragging his body, whereby he was mangled and killed, held not in such conflict with the conceded physical facts nor so contrary to reason as to require reversal of a judgment based thereon.

2. TRIAL — INSTRUCTIONS — ASSUMED FACTS.

Where an instruction began with the words "if the jury believe from the evidence," and then proceeds to submit the facts which the jury must find before they can find for plaintiff, and with reference to the running of the cars in controversy recited, "if the cars were so run and managed," etc., the instruction was not objectionable as assuming the existence of the facts stated.

3. SAME — STATEMENT OF ISSUES.

It is improper to refer the jury to the pleadings to find the issues submitted to them, but the court should state the issues raised by the pleadings in the instruction.

4. RAILROADS — OPERATION IN STREET — KILLING PEDESTRIANS — INSTRUCTIONS.

In an action againt a railroad company for killing plaintiff's child by backing certain cars over him as he was crossing defendant's track, plaintiff's instructions called the jury's attention to defendant's failure to have a watchman or brakeman at the north end of the cars to warn persons and children, and the court charged at defendant's request that it was entitled to move its cars back and forth over its tracks on such street without keeping a lookout for persons under or between the cars, and, if deceased either went under the cars, or attempted to pass

between them, without the knowledge of defendant's employés, plaintiff could not recover. Held, that an instruction submitting defendant's negligence in failing to have a brakeman on the lookout on the end of the cars, was not objectionable as misleading the jury to believe that defendant was bound to have some one in a position to warn those that might be between or under the cars or elsewhere in a place of danger.

5. APPEAL — REVIEW — HARMLESS ERROR.

In an action against a railroad company for killing plaintiff's minor son, six years of age, as he was crossing defendant's tracks in a street, defendant could not complain that the court submitted the question of the child's negligence to the jury.

6. RAILROADS — OBSTRUCTION OF STREET.

Where a railroad company constructed its tracks in the streets of a city, its right to use the street for the transportation of its cars was no greater but equal to that of a pedestrian to use the street for travel.

7. APPEAL — RECORD — BILL OF EXCEPTIONS — ARGUMENT OF COUNSEL.

Alleged misconduct of counsel in argument cannot be reviewed on appeal, where it is not shown by the bill of exceptions.

Appeal from Circuit Court, Jackson County; J. H. Slover, Judge.

Action by Annie Jaffi against the Missouri Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Elijah Robinson, for appellant. Gage, Ladd & Small and Sharp & Sharp, for respondent.

GANTT, J.

This is an appeal from the circuit court of Jackson county. The action was commenced on the 22d of June, 1901, and afterwards an amended petition was filed on December 17, 1901. Plaintiff states that on the 13th of May, 1901, she was the mother of Harry Jaffi, a minor son six years of age, and the father of said minor was dead, and the said Harry Jaffi was never married. That on the 13th day of May, 1901, about 3:30 p. m., a train crew of the defendant company, consisting of Dick Addison and William Reed, engineer and fireman, and Lon Hayden and W. J. Thelan and Pone Whiting as brakeman, were operating an engine and string of cars on State Line street, a part of which is in the state of Missouri and in Jackson county. That said State Line street is a public street located in a densely populated portion of Kansas City with tenement houses located on each side thereof, which were occupied by a large number of people, and many children were constantly on the street. That the engine attached to said train was on the south end thereof. That said train was backed north on said Central Main Line track, toward Central avenue. That when the north end of said train reached the vicinity of Central avenue, and so that the north end of said train was about directly west and opposite the Jaffi house, the three cars farthest north were cut off and left standing on the Central Main Line track of said State Line. That said train was then pulled about 200 feet south and kicked some cars in onto one of the hay tracks, which is situated on the west side of the said Main Line track, and then said crew kicked a second bunch of three cars northward on said Central Main Line track to and within a few feet of the first two of the three cars, first kicked north as first described. That said crew then pulled a bunch of about five cars out from one of the hay tracks to the south, and onto the said Central Main Line track, and then backed them northward against the second three standing farther south on said Central Main Line track, and coupled onto them. That said crew then violently, negligently, and suddenly backed said train northward against the first two or three cars standing farthest north on said Main Line track, which were then standing with the north end thereof northwest and opposite the plaintiff's house, without sounding any alarm or giving any warning that said two or three cars standing farthest north were about to be bumped against and pushed northward, and without having any brakeman, watchman, or other person on the north end of said north cars, or in a position to warn persons in danger of being run over. That while said north three cars were standing still and immediately prior to their being pushed northward, the said Harry Jaffi, the minor son of the plaintiff, attempted to cross said Central Main Line track from the west toward the east and within a few feet of the north end of said north three cars, and while said minor was still in the state of Missouri, and attempting to cross said track, he was struck by the north end of said three cars, crushing and mangling his foot until the same became entangled in a portion of said cars, and that the agents and servants of the defendant, then having all the cars on said Main Line track coupled together, suddenly started the entire train south, thereby dragging the body of said minor toward the south a distance of about 125 to 150 feet, when said train stopped and again backed toward the north, thereby running over the legs and body of said minor, killing him almost instantly. That the death of said minor was caused by the negligence of said defendant company in this, to wit: First. That said defendant company and its duly authorized and acting servants and agents were guilty of negligence, in that it pushed said three north cars northward, which caused the death of said minor, without having any watchman or brakeman upon the north end of said three north cars, or without having a brakeman, watchman, or any person in a position to warn persons that were in a position of danger of the movement of said three north cars. Second. That said defendant company and its duly authorized and acting agents pushed said three north cars northward along said State Line street, without ringing any bell, blowing any whistle, or sounding any alarm whatever to indicate that said three north cars were about to be bumped and pushed toward the north, so that persons in places of danger might protect themselves. That said Harry Jaffi died from the injury received and occasioned by the negligence and unskillfulness of the officers, agents, servants, and employés of said defendant company, while running and managing the said cars as aforesaid, and that by reason thereof plaintiff has been deprived of the society, comfort, enjoyment, and earnings of her said son, to the plaintiff's damage in the sum of $5,000, for which she prays judgment and costs. To this petition, the defendant in its answer admitted that it was a corporation engaged in the operation of the line of railway described in the petition, and that on the day and at or near the place stated an accident occurred whereby Harry Jaffi, the minor son of the plaintiff was killed; but denied that his death was caused by any carelessness or negligence on its part, or that of its servants, agents, or employés, and then made a general denial of all the other allegations in the petition, and for a further answer a plea of contributory negligence on the part of said Harry Jaffi and of the plaintiff his mother. The cause was tried and resulted in a verdict for the plaintiff, which upon a motion for new trial was set aside by the court on the ground that the verdict was against the weight of the evidence. The cause was then retried at the November term, 1903, and again resulted in a judgment for the plaintiff for $5,000. From that judgment the defendant appeals.

There is irreconcilable conflict in the testimony of the various witnesses; but the evidence on both sides established that the plaintiff's son, a boy about six years old, was killed by being run over by the defendant's cars on State Line street in Kansas City, Mo., on the 13th of May, 1901. State Line street runs north and south between the states of Kansas and Missouri, and is divided by the state line and is located in what is known locally, as the "West Bottoms" in Kansas City, and at the time of the accident it was occupied by the tracks of the Missouri Pacific Railway company, the defendant herein, and, according to...