Levin v. Metropolitan Street Railway Company
| Decision Date | 06 July 1897 |
| Parties | Levin et al. v. Metropolitan Street Railway Company, Appellant |
| Court | Missouri Supreme Court |
Appeal from Cass Circuit Court. -- Hon. W. W. Wood, Judge.
Affirmed.
R. T Railey and Pratt, Dana & Black for appellant.
(1) The change of venue was improperly granted. Huthsing v Maus, 36 Mo. 101; Lewin v. Dille, 17 Mo. 64; Jaffray v. Claflin Co., 119 Mo. 117; State ex rel. v. Bacon, 107 Mo. 627; State v. Taylor, 132 Mo. 282; Acts 1895, p. 93, sec. 2262. (2) The demurrer to plaintiff's testimony should have been sustained. Mascheck v. Railroad, 71 Mo. 276; Boland v Railroad, 36 Mo. 484; Johnson v. Railroad, 28 A. 1001; Ogier v. Railroad, 34 N.Y.S. 867; Albert v. Railroad, 39 N.Y.S. 430; Beach on Con. Neg., sec. 131; Stillson v. Railroad, 67 Mo. 671; Senn v. Railroad, 124 Mo. 629; Elliott on Railroads, sec. 1262; Casey v. Smith, 25 N.E. 734; Watson v. Railroad, 133 Mo. 246. (3) The court erred in admitting testimony, over defendant's objection, as to whether there were any obstacles to prevent the gripman from seeing the child as it approached the track. People v. Worden, 45 P. 844. (4) The court committed error in allowing a witness to state over defendant's objection which way he thought the gripman was looking at the time of the accident. State v. Miller, 44 Mo.App. 159; Nelson Mfg. Co. v. Mitchell, 38 Mo.App. 330; Pugh v. Ayres, 47 Mo.App. 598; Phares v. Barber, 61 Ill. 275. (5) Instruction 3 given on the part of plaintiff was improper and error in this case, for it was not applicable to the facts and had no bearing upon the issues, since the care that should have been exercised in no way depended upon the circumstances of plaintiffs. Clark v. Fairley, 30 Mo.App. 335; Beck v. Dowell, 40 Mo.App. 71. (6) Instructions 2 and 4 given for plaintiffs were erroneous in that they directed a recovery for plaintiffs if the gripman saw or by the exercise of ordinary care could have seen the deceased in time to have stopped the train with safety to the car and passengers and avoided the accident.
N. M. Givan and Hollis & Lithgow for respondents.
(1) The change of venue was wisely taken and properly granted. Defendant admitted the truth of the grounds in the application, and the affidavit was sufficient. Where the order transferred the whole case as to both plaintiffs, the jurisdiction over appellant was complete. Holland v. Johnson, 80 Mo. 36. (2) Defendant can not complain of error or irregularity in the Jackson circuit court, to which it failed to specifically except to the matters now complained of, and save same by bill of exceptions. Clements v. Greenwell, 40 Mo.App. 589; State v. Taylor, 132 Mo. 282; State v. Knight, 61 Mo. 373; State v. Ware, 69 Mo. 332. (3) The appellant says the court erred in admitting testimony as to whether there was any obstacle to prevent the gripman from seeing the child as it approached the track, and also in allowing witnesses to state "which way the gripman was looking at the time of the accident," especially the one who was not positive but was speaking from his best impression. These were facts bearing directly on the issues being tried, and if appellant has any authority supporting its position it has failed to cite it. The cases cited have no bearing on the question or on the case. (4) There was no error in giving instructions asked by respondents, nor in modifying the sixth instruction asked by appellant. Barry v. Railroad, 98 Mo. 62; Werner v. Railroad, 81 Mo. 374; Kelly v. Railroad, 70 Mo. 604; Donohue v. Railroad, 91 Mo. 365; Keim v. Railroad, 90 Mo. 323; Czezewzka v. Railroad, 121 Mo. 201; O'Flaherty v. Railroad, 45 Mo. 70; Frick v. Railroad, 75 Mo. 595; Welsh v. Railroad, 81 Mo. 466; Senn v. Railroad, 108 Mo. 142; Humbird v. Railroad, 110 Mo. 76.
This is an action for damages commenced in the circuit court of Jackson county, Missouri, against the Metropolitan Street Railway Company by plaintiffs for the death of their infant son, Garrison Levin, by being run over by one of defendant's cars, at or near Fifth and Central streets in Kansas City, Missouri. The accident happened on the fifteenth day of November, 1894.
At the January term, 1895, on application of plaintiffs a change of venue was granted to Cass county, where a trial was had on the twenty-fourth day of May, 1895, to the court and a jury, resulting in a verdict for plaintiffs in the sum of $ 5,000, from which defendant appeals. The ground alleged by plaintiffs for change of venue was that they could not have a fair and impartial trial in Jackson county, because defendant had an undue influence over the inhabitants of said county. The application was sworn to by only one of the plaintiffs, but no objection was made to it in the Jackson circuit court upon that ground. When the motion came on for hearing defendant offered testimony tending to show that plaintiffs' attorneys had known of the facts set up in the affidavit for change of venue long before the institution of the suit, which, upon motion of plaintiffs, was excluded. The application was sustained, and the venue changed to the circuit court of Cass county. After the cause had been sent to Cass county, defendant moved the court to transfer and move the cause back to the circuit court of Jackson county for the reason that the Cass circuit court had no jurisdiction, and because of the insufficiency of the affidavit to the application. This motion was also overruled, and defendant excepted.
At the time of the accident plaintiffs were living at number 309, West Fifth street, Kansas City, which is some distance west of the junction of Fifth and Central streets. Fifth street runs east and west, and defendant has a double track street railway thereon propelled by cable cars run frequently in both directions, west on the north track and east on the south track. The width of this street from curb to curb at the point of the accident is about thirty-five feet. The distance between the two tracks is about four and one half feet. The distance from the curbing on the north side of the street to the north rail of the north track was between eight and nine feet. Number 309, West Fifth street, where plaintiffs lived with their infant son at the time of the accident, was on the south side of Fifth street, and about one hundred to one hundred and twenty-five feet west of Central street. Fifth street at the point of the accident is one of the most public thoroughfares in the city. The parents of deceased were poor people with two small children. The wife attended to her household duties, looked after a small second hand store, while her husband was engaged elsewhere. She had no help. The family apartments were in the back part of the store building on the ground floor. At the time of the accident Garrison Levin, deceased, was two years and ten months old. Just before the accident he and his brother, about six years old, were sitting on the doorstep of the home of plaintiffs upon or near which their mother was standing. The husband and father was not at home. While the children and Mrs. Levin were thus situated a Mr. Rettenberg came along and he and Mrs. Levin engaged in a conversation in regard to the renewal of her license which had then expired. The child in the meantime, which had not exceeded five minutes, left its mother without being observed by her and went across the street, and was next seen by some of the witnesses to leave the sidewalk and start back toward his home. The child had not been away from its mother for more than five minutes at the time of the accident. She was not at the time engaged in any kind of work, but was talking to Rettenberg about her license. She was familiar with the car tracks in front of her door and knew the danger of her child getting hurt thereon. She could have seen the child going toward the track or the train approaching had she been looking. The distance at which the child went upon the track in front of the train was variously estimated by the witnesses at from five or six to fifty or sixty feet. When the gripman saw the child on the track the train was within four or five feet of it. The train was then going west on the north track. Some of the witnesses stated that there was a wagon on the north side of the street between the north track, where deceased was struck by the cars, and the curbing on the same side of the street, and that the child went from behind this wagon directly upon the track where it was struck. Other witnesses, however, testified to the contrary, and that there were no obstacles in the way to prevent the gripman on the car from seeing the child had he looked. The testimony showed that he did all he could to stop the train as soon as he discovered the perilous position of the child. There was evidence, however, tending to show that he was not looking in front of the cars, but was looking in a different direction, otherwise he would have discovered the child in time to have checked the cars, and averted the accident.
I. The first question presented by this record for consideration is the action of the circuit court of Jackson county in granting a change of the venue of the cause to the circuit court of Cass county on the application of plaintiffs. It is claimed by defendant that the change of venue was improperly granted, and that the Cass county circuit court acquired no jurisdiction of the cause. The objection to the application for the change was made in the circuit court of Jackson county before it was granted, and by motion in the circuit court of Cass county to remand the cause to the circuit court of Jackson county, because the venue had been improperly changed from the last named county. It is now...
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