Koons v. St. Louis & Iron Mountain R.R. Co.

• Decision Date: 31 October 1877
• Citation: 65 Mo. 592
• Parties: KOONS v. ST. LOUIS & IRON MOUNTAIN RAILROAD COMPANY, APPELLANT.
• Court: Missouri Supreme Court

65 Mo. 592

KOONS

v.ST. LOUIS & IRON MOUNTAIN RAILROAD COMPANY, APPELLANT.

Supreme Court of Missouri.

October Term, 1877.

Appeal from Wayne Circuit Court.--HON. R. P OWEN, Judge.

The instruction referred to in the opinion of the court as the first instruction given, is as follows:

If the jury find from the evidence that the plaintiffs are husband and wife and father and mother of deceased, James R. Koons, and that James R. Koons was a child nine years of age, incapable of understanding the dangerous character of the turn-table in question, and if they find that said turn-table was used and operated by defendant in connection with its said road, and that it was located in a public place near the passenger station and adjacent to the business and residence portion of the town of Piedmont, and that it was a dangerous machine and was by defendant left open, uncovered and unfastened, so that children could and were in the habit of playing in and about and turning the same with other children, that plaintiffs' son was caught between the ends of the timbers of the turn-table and the immovable track and thereby was crushed and killed, and if they further find that its agents or employees were guilty of negligence in setting up or keeping such a machine in a public place open, uncovered and unfastened and permitting children to frequent and play on and turn said machine, then the jury will find for the plaintiffs, and assess their damages at such sum as they may deem fair and just, having regard to the mitigating or aggravating circumstances attending such negligent conduct of defendant, not exceeding five thousand dollars.

Thoroughman & Warren and W. R. Donaldson for appellant.

1. The court erred in permitting plaintiffs' witnesses, against defendant's objection, to answer the question, “Do you think the turn table dangerous?” It did not call for facts, but for the opinion of the witnesses and substituted their judgment for that of the court or jury. The case did not require the testimony of, nor did these witnesses testify as, experts. Sparr v. Wellman, 11 Mo. 230; Gavisk v. Pacific R. R. 49 Mo. 274; Winters v. H. & St. J. R. R., 39 Mo. 468; Dickerson v. Johnson, 24 Ark. 251.

2. The court erred in permitting, against defendant's objection, the question to be asked the witnesses, “What is your understanding in regard to railroads keeping their turn-tables locked?” The usage of other railroads was immaterial to the issues, and certainly the “understanding” as to such usage, of witnesses who do not appear to have any knowledge of it, is incompetent.

3. Plaintiff's first instruction assumes controverted facts, and such an instruction is erroneous. W. M. F. Ins. Co. v. St. Mary's Sem., 52 Mo. 492; Wyatt v. Citizens R'y. Co., 62 Mo. 408; Sawyer v. Han. & St. Jo. R. R., 37 Mo. 249; Mead v. Brotherton, 30 Mo. 201. It is also erroneous as to the assessment of damages. The evidence of the jury must be based upon evidence and not mere conjecture. Quin v. Moore, 15 N. Y. 432; James v. Christy, 18 Mo. 162; Coover v. Moore, 31 Mo. 574.

4. Plaintiffs' instruction No. 3, in substance lays down the proposition that, although the plaintiffs negligently permitted their son to go upon the turn-table, they well knowing the danger, and the inexperience of the child, yet if the turn-table was not properly guarded and protected so as to keep children from going upon the same, they must find for plaintiffs.

We respectfully submit that this position is at war with every authority. The instruction wholly ignores the question whether the admitted negligence of plaintiffs, or that charged against defendant, was the proximate cause of the injury; and violates the rule that where the negligence of both parties produces the injury, no action will lie. It is not disputed that the turn-table was private property of defendant, intended for its own sole use. Schaabs v. W. S. Wheel Co., 56 Mo. 173; Straub v. Soderer, 53 Mo. p. 38; Sweeney v. O. C. & N. P. P. R'y, 10 Allen 368; Shear & Redf. on Neg., § 498; Meyers v. C. R. I. & P. R. R., 59 Mo. 223; Maher v. A. & P. R. R., 64 Mo. 267.

Emerson & Dillingham for respondent. 1st. The plea of contributory negligence is a legitimate one when defendant has not been guilty of gross carelessness and negligence himself. But in a case like the one at bar, it is trifling with good sense to maintain that this defendant may set up and keep such a dangerous machine, so inviting to children, unfastened and unguarded, and then claim that, because children escape from home and are attracted by the charms of play about and on such a machine as this, there is such contributory negligence as prevents a recovery. Isabel v. Hannibal & St. Jo. R. R. Co., 60 Mo. 482; Stout v. Railroad Co., 17 Wall. 657; Schmidt v. Milwaukee, &c., R. R. Co., 23 Wis. 186; R.R. v. Gladmon, 15 Wall. 401; B. & O. R. R. v. State, 36 Md. 366; Coombs v. N. B. Cordage Co., 102 Mass. 572; Gray v. Scott, 66 Penn. 345; B. & O. R. R. Co. v. State, 30 Md. 47; Ihl v. 42 nd St. R. R. Co., 47 N. Y. 317; B. & I. R. R. Co. v. Snyder, 18 Ohio Stat. 414; Noris v. Litchfield, 35 N. H. 271; Kennedy v. N. M. R. R. Co., 36 Mo. 363.

NAPTON, J.

1. PERSONAL INJURIES: contributory negligence of parents.

The third instruction given for the plaintiffs in this case was clearly erroneous. This instruction was “that if the jury believe from the evidence that plaintiffs negligently permitted their son James R. Koons, to wander from his home and to go upon the turn-table of the defendant, and was killed by said turn-table, and that said James R. was so young and inexperienced as not to possess sufficient judgment to warn him of the danger of the place or character of the machinery, and that he was killed by negligence and carelessness of defendants in not properly guarding and protecting said turn-table, and keeping children from playing on the same, they will find for plaintiff.” This instruction seems to have been based upon certain remarks of Mr. Justice Hunt in the case of Railroad v. Stout, (17 Wallace,) where the boy injured, who was 6 years old, was the plaintiff, and the defense disclaimed any defense resting on the ground that plaintiff's parents were negligent, or that the plaintiff was negligent, as he was only six years old. But in the present case the boy was killed, and his father and mother are the plaintiffs. To say that if they negligently allowed their son to go and play on the turn-table, it would be no contributory negligence, would be going further than the decided cases,...