Jett v. Central Electric Railway Co.
| Decision Date | 23 December 1903 |
| Citation | 77 S.W. 738,178 Mo. 664 |
| Parties | JETT et ux. v. CENTRAL ELECTRIC RAILWAY COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.
Affirmed.
John H Lucas for appellant.
(1) The demurrer offered by appellant should have been sustained, and the court grievously erred in overruling the same. The deceased was guilty of the grossest negligence directly contributing to her death and the court should have so declared as a matter of law. Payne v. Railroad, 136 Mo. 593; Graney v. Railroad, 157 Mo. 679; Campbell v. Railroad, 75 S.W. 90; Tanner v Railroad, 161 Mo. 497; Holwerson v. Railroad, 157 Mo. 216; Morse v. Railroad, 75 S.W. 676; Nellis Street Surface Railroads, pp. 367, 68, 69, 77-8; Maxey v. Railroad, 113 Mo. 11; Boyd v. Railroad, 105 Mo. 382; Kelsey v. Railroad, 129 Mo. 362; Hook v. Railroad, 162 Mo. 569; Daviess v. Railroad, 159 Mo. 1; Weber v. Railroad, 100 Mo. 194; Hogan v. Railroad, 150 Mo. 55; Moore v. Railroad, 75 S.W. 677. (2) There was no evidence that the rate of speed was the proximate cause of the injury, and on that issue the demurrer should have been sustained. Molyneux v. Railroad, 81 Mo.App. 28; Thompson v. Railroad, 140 Mo. 125; Payne v. Railroad, 136 Mo. 562; Culbertson v. Railroad, 140 Mo. 35; Hanlon v. Railroad, 104 Mo. 381; Tanner v. Railroad, 161 Mo. 497; Vogg v. Railroad, 138 Mo. 172; Murray v. Railroad, 75 S.W. 611; Moore v. Railroad, 75 S.W. 672; Zumault v. Railroad, 74 S.W. 1015; Holwerson v. Railroad, 157 Mo. 245. (3) Instructions two and three asked by plaintiff ought not to have been given. They did not correctly declare the law and were not authorized either by the pleadings or the proof. O'Malley v. Railroad, 113 Mo. 319; McIntosh v. Railroad. 103 Mo. 131; Barker v. Railroad, 91 Mo. 86; Molyneux v. Railroad, supra; Ruschenberg v. Railroad, 161 Mo. 82; Holwerson v. Railroad, 157 Mo. 245; Moore v. Railroad, 75 S.W. 672; Payne v. Railroad, 136 Mo. 593; Tanner v. Railroad, 161 Mo. 497; Murray v. Railroad, 75 S.W. 611.
Andrew R. Lyon and Scarritt, Griffith & Jones for respondents.
(1) There was substantial evidence of defendant's negligence upon which to predicate plaintiffs' instructions and submit the case to the jury. (a) Appellant contends that its demurrer to plaintiff's evidence should have been sustained. In considering this question, the court will examine all the evidence, no matter by whom offered, as the defendant did not stand upon its demurrer, but when it was overruled proceeded to introduce its testimony. Hilz v. Railroad, 101 Mo. 42; Klockenbrink v. Railroad, 72 S.W. 900; McPherson v. Railroad, 97 Mo. 253. (b) And in considering the evidence upon this question every part of the evidence in plaintiff's favor, together with all reasonable inferences therefrom, will be taken as absolutely true. Barth v. Railroad, 142 Mo. 549; Cogan v. Railroad, 73 S.W. 741; Norton v. Ittner, 56 Mo. 351; Barth v. Railroad, 142 Mo. 535; Lamb v. Railroad, 147 Mo. 171; Grocer Co. v. Railroad, 89 Mo.App. 399; Fenner v. Traction Co., 202 Pa. 365. (2) The indisputable physical facts and the circumstances surrounding this tragedy are noteworthy. (a) St. John avenue, where this occurrence took place, was a public street and thoroughfare. The child was no trespasser. She had the same right to be upon the street and at the place she was killed as had the defendant company's car. Oates v. Railroad, 168 Mo. 535; Klockenbrink v. Railroad, 72 S.W. 902. (b) The child was struck at a point on St. John avenue about one hundred feet east of Jackson avenue. This is a thickly settled part of the city. The street car line runs along St. John for about three-quarters of a mile east of Jackson avenue. Along St. John east of Jackson are a number of residences, stores, three greenhouses and Budd park, one of the city's public parks. At that time this part of St. John avenue, between the rails and tracks of the street railway, was paved with macadam, making a good walk, free from mud in wet weather and from dust in dry weather. There was no paving and no sidewalk on St. John avenue east of Jackson, and the morning on which the tragedy occurred was wet and the ground muddy. Vehicles generally, and pedestrians almost exclusively, went along the railroad tracks on the macadam coming from the east, until they got to Jackson avenue, when pedestrians would go over to the sidewalk, which extended along the south side of St. John avenue as far east as Jackson. This custom had continued for several years prior to the time in question and was well known to the defendant and its employees, including the motorman who was operating the car which killed Gertrude Jett. Eckert v. Railroad, 13 Mo.App. 355; Fenner v. Traction Co., supra. (c) The person on the street, whose life was involved, was a a child of tender years. Gertrude Jett, at the time of her death, was eleven years and ten and one-half months old, and her brother at her side was then nine and a half years old. The law requires of those operating street cars a greater degree of care where children are known to be, or may be expected to be on the street. Boland v. Railroad, 36 Mo. 491; Tishacek v. Railroad, 110 Wis. 417; O'Flaherty v. Railroad, 45 Mo. 73. (d) The street car tracks extend straight out St. John avenue for three-quarters of a mile east of the place of injury. The car at that place was running up a slight grade. The tracks were laid on a plane for about a block east of the child's home, when there was a break and the grade was increased, but a child on the spot where Gertrude was struck would be plainly seen for at least two blocks east of that place. (3) Having in mind the above undisputed physical facts and the relation of the parties involved, and the knowledge of the car operators of the existing conditions, the conduct of the defendant's employees was negligent, as charged. The motorman, instead of being especially alert at this particular point on the line, where it was known that many people walked on the tracks, was paying no attention to his business, and was not even in his proper position. Both the law and humanity required that the motorman be especially alert and active at this point on the line. Thompson v. Railroad, 93 Mo.App. 548; Fenner v. Traction Co., supra. (4) What constitutes negligence or want of due care is to be determined largely by the circumstances of the one whose conduct is in question; by the relation he bears to associated persons and things. The law requires of him that he measure up to the full performance of the duty imposed by the peculiar circumstances in which he is placed. Grocer Co. v. Railroad, 89 Mo.App. 399.
Plaintiffs' minor child was run over and killed by a street car of the defendant, as they allege, through the negligence of defendant's servants operating the car.
The negligence charged in the petition was the running of the car at a greater rate of speed than twelve miles an hour in violation of a city ordinance, and in running the car at a high rate of speed against and over the child while she was walking along the track, without giving any warning of its approach, and without exercising reasonable care to avoid striking her after the servants in charge of the car saw that she was in a position of danger, or would have seen it if they had exercised ordinary care.
The answer was a general denial and a plea of contributory negligence.
There are some undisputed facts in the case. They are as follows:
St. John avenue is a public street in Kansas City, running east and west; Jackson street, running north and south, crosses it at right angles; Elmwood avenue, which is parallel with and east of Jackson street, also crosses St. John avenue at right angles. The distance from Jackson street to Elmwood avenue is half a mile, and there is no other street crossing St. John avenue between those two. St. John avenue is the only open thoroughfare running east and west through a section about a mile wide, and it is, therefore, a much-used highway for people living in that part of the city. The defendant maintains a double-track street railroad along the center of St. John avenue. Between Jackson street and Elmwood avenue, St. John avenue is not paved or sidewalked, except a sidewalk in front of the plaintiffs' premises, and except that along the center of the street, a space sixteen feet wide in which is laid defendant's tracks, there is a surface of broken stone and granite. In consequence of the otherwise unpaved condition of the street, the travel both for vehicles and pedestrians is along that sixteen-foot space, particularly so in wet weather when the street is muddy. People usually walked in the railroad tracks because it was better walking than on the street outside, and the children going to school took that course.
The plaintiffs' residence is on a lot that fronts fifty feet on the north side of St. John avenue. From the west line of plaintiffs' lot to the east line of Jackson street is 208 feet. Farther to the east is the residence of Mr. Owen; from his house to Jackson street is 660 feet. Elmwood avenue is still to the east of Mr. Owen's house.
On the morning of February 6, 1900, plaintiffs' two children, a girl aged eleven years ten and a half months, and a boy about two years younger, on their way to school, were on the north track of defendant, when a car of defendant going in the same direction approached behind them and struck the girl and killed her.
In addition to the above undisputed facts, there were other facts about which there was conflict in the evidence, the testimony for the plaintiffs tending to show that the facts were one way, that for the defendant another. If the facts were as the plaintiffs'...
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