Lange v. Missouri Pac. Ry. Co.

• Decision Date: 27 November 1907
• Citation: 208 Mo. 458,106 S.W. 660
• Parties: LANGE. v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

106 S.W. 660

208 Mo. 458

LANGE. v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri, Division No. 1.

November 27, 1907.

1. RAILROADS — INJURIES TO PERSONS ON TRACK.

In an action for injuries to a child who was run over while on a railroad track, evidence held sufficient to show negligence on the part of defendant.

2. APPEAL AND ERROR — INVITED ERROR.

A party cannot complain of an instruction which is in harmony with one given at his own request.

3. TRIAL — INSTRUCTIONS — APPLICABILITY TO ISSUES — EVIDENCE.

In an action for injuries to a child who was run over on the track, the petition alleged that, though the brakeman saw plaintiff in time or by ordinary care could have seen her in time to have stopped the car, but negligently and carelessly failed to stop it, though the petition contained statements that defendant's agents and servants "unnecessarily," etc., ran over plaintiff, an instruction submitting the issue of negligence, irrespective of wantonness and recklessness, was not objectionable as a departure from the petition.

4. RAILROADS — PERSONS ON TRACK — TRESPASSERS.

Where a child accompanied a passenger to a railroad station, and after the departure of the passenger's train, and while the child was standing on the platform, servants in charge of a locomotive caused steam to be discharged

therefrom, causing the child to go upon one of the tracks in an attempt to escape from the steam, a contention that while upon such tracks she was a trespasser was without merit.

5. SAME—INSTRUCTIONS.

In an action for injuries to a child on the track, an instruction was that, if defendant's brakeman in charge of the car while the same was moving toward plaintiff saw her on the track in front of the car in time to have stopped the same before striking her, and paid no further attention to the situation until it was too late to stop, defendant was guilty of negligence, was not erroneous, on the ground that it did not require plaintiff to have been in a place of danger before the brakeman was called upon to use ordinary care.

6. TRIAL—CONSTRUCTION OF CHARGE.

The fact that an instruction as to the circumstances under which plaintiff in an action for injuries would be entitled to recover ignored contributory negligence was not error, where the question was properly presented in another instruction.

7. NEGLIGENCE—ACTION—INSTRUCTIONS.

While it is better practice to submit to the jury all the facts relied on as constituting contributory negligence in one instruction, there is no valid objection to submitting them in different instructions, especially where none of the instructions told the jury that, if they found the facts to be true, they should find plaintiff not guilty of contributory negligence, but told them that they might take them into consideration in passing on that question.

8. SAME—EVIDENCE.

Where one frightens another by his negligence, and while he is in that condition he is injured, such facts should be considered in passing on the question of contributory negligence.

9. DAMAGES—INSTRUCTION.

In an action for personal injuries, an instruction that, if the jury found for plaintiff, they might consider her physical pain and mental anguish, and such as she might suffer as shown by the evidence, and, in addition, consider to what extent, if any, plaintiff's capacity for earning a livelihood after her majority would be impaired by the injury, and return a verdict in such sum as they believed to be just, held, that the instruction was not objectionable on the ground that it left it to the jury to fix the amount of damages as they might deem just and proper.

Appeal from Circuit Court, Lafayette County; Samuel Davis, Judge.

Action by Freda Lange against the Missouri Pacific Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

This suit was instituted in the circuit court of Lafayette county, seeking to recover $20,000 damages for personal injuries received by plaintiff, through the alleged negligence of the defendant by running one of its cars upon and over her right leg, and so mangling it as to render amputation thereof necessary just below the knee. There was a trial before the court and jury, which resulted in a verdict and judgment for the plaintiff for the sum of $5,000. After taking the proper preliminary steps, the defendant appealed the cause to this court. There is no question presented here regarding the pleadings, and for that reason they will not be further noticed.

The evidence for plaintiff tended to show: That plaintiff was a little German girl, 9 years and 9 months old at the time of her injury and could not speak English. The injury occurred at a station on defendant's road, called "Emma." That at the station there are two tracks—the main and the switch track—and the latter was 300 or 400 feet in length and was north of the main track, and at the point of the injury they were separated about 40 feet. That these tracks ran east and west, and a public road, 40 feet in width, crossed them at right angles. That between the two tracks and just west of the public road and lying along and parallel with the main track was located a cinder platform, constructed for and used by the patrons of the road, but there was no station house. That this platform was about 40 feet long by 8 in width. That the plaintiff was struck and injured on the switch track, about 16 feet west of the public road. That she lived south of railroad, and was attending school on the north side. That school was dismissed about 4:30 p. m., and she was on her way home with 12 or 14 other school children, all of whom went down to the platform to see their teacher off on a west-bound train, due about that time. That while the children were on the platform an east-bound freight train headed in on the side track, awaiting the passage of the west-bound passenger train. That there was standing on the side track an empty freight car, which was to be placed in the freight train, and taken on east. That the entire crew, with probably one exception, saw the children standing on the platform. That after the departure of the passenger train the freight engine was disconnected from its train and coupled onto the empty car standing in front thereof, which it pushed up beyond the east end of the switch track, and some distance beyond that point onto the main track, and then the engine was reversed and ran back west on the main track, pulling the empty car, and while thus moving the engine was uncoupled from the car, and it was shunted back west on the side track to be coupled onto the freight train, and the engine passed faster on down the main line, and thereby performed what is called a "running switch." That because of the more rapid speed of the engine it reached the platform and stopped there some few seconds before the empty car reached a corresponding position on the switch track. That when the engine stopped at the platform the children were still standing thereon, and while thus standing the employés in charge of the engine caused to be discharged therefrom, three or four times, large volumes of steam, which made loud noises and blew the dirt and cinders 10 to 12 feet from the platform. That the steam struck the children and caused them, including the plaintiff, to go backward toward the side track upon which the empty car was approaching, as a result of the momentum given it by the flying switch. That while the children were thus moving backward, the fireman was looking at them and laughing. That as the discharge of the steam was repeated the children continued to retreat therefrom backward, toward the side track, and plaintiff was looking all the time, with a sunbonnet on, at the engine and escaping steam until she reached and stepped upon the side track, where she was struck by the empty car and injured. That she never looked east or west, nor saw the approaching car which struck her. That the brakeman, who was on the west end of the car, and in charge thereof, saw the plaintiff moving backward toward him, when the car was from 60 to 70 feet from her, and there was nothing to obstruct his view of her, but he made no attempt to stop it until he was within 6 or 8 feet of her, and only then after some one hollowed to him that some one was in danger. That the car was running 3 or 4 miles an hour, and could have been stopped within 3 or 4 feet. The plaintiff then rested her case, and defendant asked a demurrer to the evidence, which was, by the court, overruled, and defendant duly excepted.

The defendant then introduced evidence which tended to prove that no steam escaped from the engine while it was standing at the platform, nor until it started east, after making the switch, and that what then escaped was necessary in the ordinary operation of the engine; that no steam was emitted for the purpose of frightening the children; that plaintiff was familiar with the station, tracks, and the operation of trains at that place; and that she was a girl of average intelligence, and crossed the tracks every day going to school.

The court then gave the following instructions, over the objections and exceptions of defendant, on behalf of the plaintiff, to wit: (1) "The court instructs the jury that plaintiff's petition charges her injuries and damages were caused by the following acts of negligence of defendant's agents, operating conjointly or severally, namely: That said agents in charge of said engine unnecessarily and negligently, purposely and wantonly, discharged at and about the plaintiff and her companions an excessively large volume of steam, thereby causing her to take fright and flee from said steam, and unconsciously to stop upon the side track in front of a detached freight car moving upon a running switch, by which she was struck, and which ran over and crushed her leg. Also that the defendant negligently used said freight car while equipped with a defective or insufficient brake,...