Lange v. Missouri Pacific Railway Co.
| Decision Date | 24 December 1907 |
| Citation | 106 S.W. 660,208 Mo. 458 |
| Parties | FREDA LANGE, by Next Friend, v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Lafayette Circuit Court. -- Hon. Samuel Davis, Judge.
Affirmed.
Martin L. Clardy and Scott & Bowker for appellant.
(1) The court erred in refusing to sustain appellant's demurrer to the evidence. Carrier v. Railroad, 175 Mo. 481; Zumault v. Railroad, 175 Mo. 311; Holwerson v Railroad, 157 Mo. 261; Tanner v. Railroad, 161 Mo. 497; Coleman v. Land Company, 105 Mo.App. 271; Van Back v. Railroad, 171 Mo. 338; Spillane v Railroad, 135 Mo. 414. (2) A child can be guilty of contributory negligence the same as an adult, regard being had to its age, etc., and where the act of the child is the sole cause of the injury, there can be no recovery. Spillane v. Railroad, 135 Mo. 414; Barney v Railroad, 126 Mo. 372; Lee v. Jones, 181 Mo. 291. (3) Where a party is a trespasser on the tracks of a railroad company, and is injured while thereon, the company is only liable to such injured party for wanton and reckless disregard of human life, and unless the proof shows such character of negligence, the company is not liable. Carrier v. Railroad, 175 Mo. 481; Zumault v. Railroad, 175 Mo. 311; Van Back v. Railroad, 171 Mo. 339; Roenfeldt v. Railroad, 180 Mo. 554; Frank v. Railroad, 112 Mo.App. 496; Heiter v. Railroad, 53 Mo.App. 331; Moore v. Railroad, 176 Mo. 529. (4) Instruction 1, given for respondent, was erroneous, for the reason there was no testimony that the brake on the car was defective. Donaham v. Joyce, 129 Mo. 5. (5) Instruction 2, given for respondent, was erroneous, for the reason that it leaves out of view any element of wantonness or recklessness on the part of appellant, its agents or employees, and also because it did not require respondent to have been in a dangerous position, and unaware or oblivious of the approaching of the car, nor did it require her to be in the exercise of any degree of care whatever. (6) Instructions three, four, five and six, given for respondent, were erroneous, for the reason they were a comment upon the testimony, and give undue importance to certain facts. Lynch v. Railroad, 112 Mo. 437; State v. Snyder, 182 Mo. 521; Bidbeutal v. Railroad, 43 Mo.App. 470. (7) Instruction 10, upon the measure of damages, was erroneous, for the reason that it allowed the jury to return such damages as they deemed just and reasonable. Hawes v. Stock Yards, 103 Mo. 60.
Alexander Graves and Charles Lyons for respondent.
The facts of this case are precisely the same as the facts in the father's suit against this appellant. Lange v. Railroad, 115 Mo.App. 582. (1) Instruction 1 merely defined the issues and told the jury that plaintiff need not prove all the acts of negligence charged. If there was no evidence concerning defective brakes, then instead of submitting that question to the jury as appellant did by its instructions 3, 6 and 7, it should have asked the court to so direct the jury; and failing to do so, it can not now complain. Thompson v. Bucholz, 107 Mo.App. 121; Coleman v. Drane, 116 Mo. 387. (2) Appellant's point 5 unjustly complains of resondent's instruction. Donahoe v. Railroad, 83 Mo. 551. The law presumes that plaintiff was injured by the negligence of defendant and that she exercised due care at the time. Holding v. St. Joseph, 92 Mo.App. 149; Weller v. Railroad, 164 Mo. 180. Besides, if there was any omission in that instruction, the omission was supplied by the appellant's precise and rigid instructions, 8, 6 and 4. Owen v. Railroad, 95 Mo. 181. In view of appellant's said instructions, any omission in the instruction for respondent is cured. Anderson v. Railroad, 161 Mo. 427; Meadows v. Ins. Co., 129 Mo. 97; Hughes v. Railroad, 127 Mo. 452. (3) Appellant's point 6 is the same as its point 3 in its brief (in the former case) reported in 115 Mo.App. 584; and cites the same authorities, the first of which, Lynch v. Railroad, 112 Mo., decided by Sherwood, J., is overruled by this court In Banc in Schmitz v. Railroad, 119 Mo. 269, and Baker v. Railroad, 147 Mo. 168. See, also, Blackwell v. Hill, 76 Mo.App. 53. (4) Appellant in point 7 complains that respondent's instruction 10 allowed the jury to return such damages as they deemed reasonable and just. There is nothing in this complaint. This identical final sentence in a similar instruction, from which 10 is copied, was approved by Court in Banc in Schmitz v. Railroad, 119 Mo. 269. (5) The demurrer to the evidence was properly overruled. Lange v. Railroad, 115 Mo.App. 582; Donahoe v. Railroad, 83 Mo. 555; Reyburn v. Railroad, 187 Mo. 572; Baker v. Railroad, 147 Mo. 158; Stephens v. Railroad, 67 Mo.App. 362. (6) The judgment should be affirmed and our motion for ten per cent damages should be sustained.
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, nine years and nine 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 three or four hundred feet in length and was north of the main track, and at the point of the injury they were separated about forty feet; that these tracks ran east and west, and a public road, forty 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 forty feet long by eight in width. That the plaintiff was struck and injured on the switch track, about sixteen feet west of the public road; that she lived south of the 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 twelve or fourteen 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 on to 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 employees in charge of the engine caused to be discharged therefrom, three or four times, large volumes of steam, which made loud noises and blew dirt and cinders ten to twelve 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 sun bonnet 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 sixty to seventy 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 six or eight feet of her, and only then after someone hollowed to him that someone was in danger; that the car was running three or four miles an hour and could have been stopped within three or four 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,...
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