Kube v. St. Louis Transit Co.

• Decision Date: 15 December 1903
• Citation: 78 S.W. 55,103 Mo. App. 582
• Parties: KUBE v. ST. LOUIS TRANSIT CO.
• Court: Missouri Court of Appeals

78 S.W. 55

103 Mo. App. 582

KUBE v. ST. LOUIS TRANSIT CO.

Court of Appeals at St. Louis, Missouri.

December 15, 1903.

STREET RAILWAYS—INJURIES TO PEDESTRIANS —NEGLIGENCE—CHILDREN—CARE REQUIRED OF OTHERS—PROXIMATE CAUSE—MISCHANCE OF PERSON INJURED.

1. Where an individual, by some accident, precipitates a casualty resulting in injury to himself owing to a dangerous situation brought about by another's negligence, his own mischance, instead of the prior negligence of the other, is not necessarily deemed the proximate cause of the injury; but whether the injured person is entitled to recover from the negligent one depends on whether he himself was guilty of negligence that proximately caused the injury.

2. The degree of care resting on street railway employés to avoid injury to a child on the street is the same as that resting on it generally to avoid injuring persons in the streets; that is, merely ordinary vigilance and activity.

3. The obligation imposed on street railway employés to pedestrians is to take merely the care that men of ordinary prudence take when confronted by similar situations and conditions, and what precautions a man of ordinary prudence will take to prevent accidents depends on his knowledge of facts which suggest the probability of such accidents ensuing, unless means are adopted to avert it, and suggest, therefore, as well, the adoption of such means.

4. A motorman in charge of a street car must stop his car before reaching a person exposed to danger on the track if he has time to do so after discovering the perilous position.

5. In an action against a street railway for injuries to a child, evidence that the motorman was accustomed to his run, knew that a number of children usually came upon and crossed the street at the hour that he was passing, and could see for a long distance that there was no policeman on guard to protect the children as usual, but nevertheless ran his car at an excessive speed, made a question for the jury as to defendant's negligence.

Appeal from St. Louis Circuit Court; J. R. Kinealy, Judge.

Action by Nicholas Kube, by George F. Dimitry, next friend, against the St. Louis Transit Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Jones, Jones & Hocker, for appellant. Jos. A. Wright, for respondent.

GOODE, J.

Plaintiff is a minor child, and was not quite seven years old when he received the injury which is the basis of this action. He was a student at the Ashland School in St. Louis, which is situate on the east side of Newstead avenue at the corner of Sacramento. About 800 children of ages ranging from 6 to 15 years attended that school. It was the custom to have a policeman stationed at the locality at dismissal hours in order to protect the children from injury by street cars while crossing Newstead avenue, on which there are tracks. On the day the accident happened to plaintiff the police officer had been temporarily withdrawn from that station on account of an accident at the Fair Grounds. The boy Nicholas Kube was dismissed, along with a crowd of his school fellows, about half past 3 o'clock in the afternoon, and the children hastened, as was their wont, in various directions; many of them, among whom was the plaintiff, crossing the street to the west side on the way to their homes. Plaintiff. while crossing the street, stumbled or fell on the track, and was struck by a car. But two persons besides the car crew, who were not called to testify, were eyewitnesses of the accident, and they were school children. One of them—Cecelia Spindler—told it as follows: "Q. When was the accident? A. The 7th of January, and I was just coming out of my room when I seen the little boy— Q. What time in the afternoon? A. About after 3 o'clock; just when school was letting out. Q. What room are you in? A. I am in 6. Q. What floor is that on? A. Third floor. Q. Where did you first notice Kube, this little boy, when you came out of school? A. I was going straight home, and he was running — Q. Where? A. He was running across the tracks. Then he just stumbled on the tracks, and hardly couldn't get up—the car was coming at such awful speed—he couldn't get up, and the car run over him. Q. Was the car coming fast or slow? A. Fast. Q. Did the motorman ring the bell? A. He rang the bell when he was right near him. Q. How close to the boy when he rang the bell? A. About six feet. Q. Did he ring the bell before that, that you heard? A. No, sir; I didn't hear him ring the bell. Just when he was trying to get by I heard the bell. Q. What became of the boy? Where did the car hit him? A. First it hit him in the leg; then he took a somersault; and when the car ran over him I seen him lying in the street there. * * * Q. Where was he when you first saw him? A. He was right crossing the street. Q. Which side of Sacramento, north or south? A. I think it was north. Q. North side of the street? A. Yes, sir. Q. From the east over toward the west side? A. Yes, sir. Q. Was he in the street when you first saw him? A. Yes, sir; he was in the street, and he was running. Then he stumbled. Q. Was he running after anybody? A. I don't know if he was running after anybody. Q. Was anybody running after him? A. I don't know whether anybody was running after him. Q. As he ran across the street, you saw the car coming? A. Yes, sir. Q. You say he fell down? A. He fell down. Q. Where did he fall? A. on the car track. Q. Right in the middle of the car track? A. Yes, sir. Q. What part of the car hit him? A. The fender hit him first. Q. Where was he lying after the car struck him? A. In the middle of the track. Q. So the car must have run over him? A. Yes, sir. Q. Right square over him? A. Yes, sir. Q. Sure about that? A. Yes, sir. Q. How far away were you? A. I was about half a block away. I was standing at the crossing when it happened." Willie Vougt testified: "Q. Were you at school the day this little Kube boy got hurt? A. Yes, sir. Q. How long have you known this little Kube boy? A. About a month. Q. A month before the accident? A. Yes, sir. Q. Did you see him, on the day he was hurt, coming out of school? A. Yes, sir. Q. Did you see the car that struck him? A. Yes, sir. Q. Tell the jury just what you saw there. Where was the boy when you came out of the school? A. He was running across the street, and he stumbled, and the car came, and he rang the bell, but he couldn't get up in time, and the car hit him. Q. How far was the car away from the boy when the motorman rang the bell? A. About eight feet. Q. About eight feet away? A. Yes, sir. Q. Did you hear him ring the bell before that? A. No, sir. Q. Was the car running fast or slow? A. Fast. Q. Where did the car hit this little fellow? A. Hit him on the leg first. Q. Where did it hit him next? A. He went under the car, and I didn't see him after that. * * * Q. Which crossing was he on, north or south crossing? A. He was on the south crossing. Q. On the south crossing? A. Yes, sir. Q. And he was running from the east over to the west side of the street? A. Yes, sir. Q. Did he fall before the car struck him or afterwards? A. He fell before the car struck him. Q. Fell on the tracks? A. Yes, sir."

For the plaintiff the court instructed that the law required persons situated as Nicholas Kube was when and before the accident happened to exercise ordinary caution to avoid injury to themselves, and that the absence of such caution constituted negligence; but that in determining whether plaintiff was exercising such caution the jury should take into consideration his age and capacity; that if, in going on defendant's track, plaintiff was using the degree of care which, according to the ordinary experience of mankind, is to be expected of one of his capacity, he was not guilty of negligence. Further, that the law required the defendant company's servants to be watchful to see that the way was clear in the direction in which a car was going, and that where they had reason to anticipate the sudden and unexpected appearance of children on or approaching the track they should so manage the brakes and controller of the car as to be able to stop quickly and readily, if necessary; that if, under all the circumstances detailed in the evidence, the jury found there was reason to anticipate the sudden and unexpected appearance of children on the track at the intersection of Newstead and Sacramento avenues, and that the defendant's servants in charge of the car were not so managing its controller and brakes as to be able to stop quickly should occasion require, and further found the injuries sustained by plaintiff were caused by the failure of defendant's servants to so manage said controller and brakes, their verdict should be for the plaintiff; unless they found the plaintiff himself was not using the degree of care to be expected of a boy of his age and capacity in the circumstances shown.

For the defendant the court instructed substantially as follows: That the burden was on the plaintiff to establish by the greater weight of evidence that the agents or servants in charge of the car were guilty of some act of negligence or want of ordinary care which was the direct, proximate, and efficient cause of the injury, and, unless plaintiff had so proven, he was not entitled to recover. That the mere fact of the accident was no evidence of negligence in itself, but, to find for the plaintiff, the jury must find that at the time of his injury defendant's servants were guilty of some want of ordinary care; that is to say, of doing some act which would not have been done by an ordinarily careful person in similar circumstances, or omitting some act that would not have been omitted by such a person in the circumstances. That, in order for the plaintiff to recover on account of the speed of the defendant's car, the jury must find it was being run at a speed which was negligent under the circumstances; or, in other words, at such a speed as a reasonably...