Lynch v. Metropolitan St. Ry. Co.

• Decision Date: 29 November 1892
• Citation: 20 S.W. 642,112 Mo. 420
• Parties: LYNCH v. METROPOLITAN ST. RY. CO.
• Court: Missouri Supreme Court

20 S.W. 642

112 Mo. 420

LYNCH v. METROPOLITAN ST. RY. CO.

Supreme Court of Missouri, Division No. 2.

November 29, 1892.

HORSE RAILROADS — ACTION FOR DEATH OF INFANT — NEGLIGENCE — ABSENCE OF BELLS — INSTRUCTIONS — DAMAGES.

1. In an action for the death of plaintiff's son, a boy 10 years old, it appeared that while on the street unattended he was run over by defendant's street car, which was drawn by mules. The boy knew the street well; it was daylight; the mules were moving at a walk, and he could have seen the car if he had looked. Held, that it was error to charge that the deceased had a right to presume that defendant had complied with the law as to providing bells for the mules in the absence of knowledge to the contrary, as it was a question for the jury whether, if he had exercised due care, deceased would not have observed the absence of bells.

2. An instruction that deceased was required to exercise only such care as might be expected of a boy of his age and capacity, and that the same degree of care in avoiding danger is not required from a person of tender years and imperfect discretion as from a maturer person of more discretion, was erroneous in assuming that deceased was a person of imperfect discretion, instead of leaving the question to the jury, and also in failing to tell the jury that plaintiff must show that the boy was using the care of one of his age and capacity at the time of the injury.

3. In such a case, where there was evidence that deceased had been taken out of school because of a defect in his speech, it was a question for the jury whether plaintiff, the mother of the child, was negligent in allowing him to go on the street unattended.

4. Rev. St. 1889, § 4425, providing that whenever any person shall die from any injury resulting from or occasioned by the negligence of any officer or employe while running, conducting, or managing any car, the employer shall forfeit $5,000, applies where one is killed by a street car owing to the company's failure to comply with a city ordinance requiring bells on the animals drawing a car.

Appeal from circuit court, Jackson county; JAMES GIBSON, Judge.

Action by Ella Lynch against the Metropolitan Street Railway Company for damages for the killing of her son. From a judgment for plaintiff, defendant appeals. Reversed.

Pratt, Ferry & Hagerman, for appellant. Beebe & Watson and F. W. Randolph, for respondent.

GANTT, P. J.

On the 4th day of July, 1888, Richard Lynch, a boy between 10 and 11 years of age, residing with his widowed mother, in Kansas City, Mo., within one block of Main street, the principal thoroughfare of that city, was given a nickel, with which to buy himself a "milk shake," and was permitted by his mother, the plaintiff in this action, to go unattended to Main street to make his purchase. The defendant was operating a street horse car railroad on said street at the time, by virtue of a city ordinance. The ordinance required the defendant to have bells on all of its teams hauling its cars along said street to warn persons on the street of the approach of its cars. About 10 o'clock in the forenoon he was seen to pass across said street, a few feet in front of one of defendant's cars, drawn by a pair of mules, moving at that time in a walk and up a grade, near the crossing of Fourteenth street. He crossed in safety, when apparently he discovered he had dropped his money or something on the track, and immediately turned, stepped upon the track, just in front of the advancing car, stooped down, and almost instantly was struck by the mules, or one of them. The mules became frightened by stepping on the boy, and were excited by the firing of crackers in the street, and began at once to jump and plunge, drawing the front wheel of the car against the boy before they could be stopped. The boy was taken from under the car dead. He seems to have been stunned by the blow from the mule's hoof, as he made no outcry. There was some conflict in the evidence as to the distance the boy crossed in front of the car, and how far he got before he stepped back in front of the mules. It was shown and admitted there were no bells upon the mules. The petition alleged negligence in — First, failing to provide sufficient number of employes to man the car; second, that the team was unsafe; third, that the driver was negligent in failing to discover the boy approaching the track in time to prevent the injury; fourth, that the driver was negligent in failing to discover the boy in the act of crossing in time to prevent the accident; fifth, that the driver was negligent in not discovering the boy after he got on the track in time to prevent the injury; sixth, the driver failed to stop, after knocking the boy down, in time to prevent the injury; seventh, that defendant negligently failed to provide bells on the mules to warn persons of the approach of the car.

The court gave the following instructions for the plaintiff: (1) "The jury is instructed that contributory negligence is a defense, and must be proved to your satisfaction by a preponderance of all the evidence in the case." (2) "The court instructs the jury that the deceased, Richard Lynch, when crossing the track and going back upon the same, had a right to presume that defendant had complied with the law as to providing bells on said mules, in absence of knowledge to the contrary." (3) "The court instructs the jury that it was the duty of the defendant to have bells attached to the mules drawing said street car, and if you find and believe from the evidence that at the time of the injury the bells were not attached to said mules, then the court instructs you that defendant's failure to provide said bells was negligence; and if you further find and believe from the evidence that such failure to provide and attach bells to said mules was the direct cause of defendant being run over and killed without negligence on his part, as explained in these instructions, then your verdict must be for plaintiff." (4) "The jury are further instructed that if they believe from the evidence that there was a person driving said car before and at the time of said injury, then it was the duty of said person to keep a vigilant watch ahead to avoid injuring persons using said street; and if you believe from the evidence that said person might, by the exercise of reasonable care, have seen the deceased, Richard Lynch, in the act of turning around and attempting to go on the track, in time so that by the exercise of reasonable care said person might have checked said mules, and prevented them from running over deceased and causing his death, then your verdict must be for the plaintiff." (5) "Although the jury may believe from the evidence that one M. M. Heery was acting in the capacity of driver of defendant's car and mules thereto attached at the time of the injury complained of, yet if you find and believe from the evidence that by the exercise of ordinary care and prudence on said Heery's part he might have seen deceased, Richard Lynch, in a place of danger in time to have stopped the car and avoided killing him; or if, by the exercise of ordinary care and prudence, under the circumstances detailed in evidence, the said Heery, while so driving, might have avoided driving over the said Richard Lynch, and killing him, after he discovered, or by reasonable care could have discovered, his danger, — then your verdict must be for plaintiff." (6) "In determining whether deceased, Richard Lynch, was guilty of contributory negligence, the jury are instructed that said Richard Lynch, son of plaintiff, was required to exercise only such care and prudence as might reasonably be expected of a boy of his age and capacity under similar circumstances, and that the same degree of care and prudence in avoiding danger is not required from a person of tender years and imperfect discretion as from a person of mature years and greater discretion under similar circumstances." (7) "The jury are instructed, though you should believe from the evidence that the deceased, Richard Lynch, was negligent in going back on defendant's tracks to pick up something, yet that will not prevent a recovery if you further believe and find from the evidence that a person was driving prior to and at the time of the injury, and by the exercise of reasonable care might have discovered the deceased in the act of going back on said track in time, by the exercise of reasonable care, to have prevented the mules from running over and killing him, then your verdict must be for plaintiff." (8) "You are instructed that there is no negligence proven against plaintiff, Ella Lynch, in this cause." (9) "If you find for the plaintiff in this cause, you will assess her damages at the sum of five thousand dollars." (12) "The jury are instructed that ordinary care, as mentioned in these instructions, depends on the circumstances and facts of each particular case or situation with reference to which the term is used. It is such care as a person of ordinary caution and prudence would usually exercise in the same situation and circumstances. The jury are further cautioned that all the instructions given to them in this cause are to be considered together, and as explanatory of each other, excepting numbers 9 and 10, which are only to be considered in the event the jury decide to return a verdict for plaintiff under the other instructions given." To the giving of each and every one of which instructions the defendant separately at the time duly excepted.

The court gave the following instructions for defendant: (2) "In this kind of a case the plaintiff is bound to aver in his petition, and prove upon the trial, some negligence on the part of the defendant which was the direct cause of the injury complained of, and only such acts of negligence can be considered as are submitted to your consideration by the court. In this case the plaintiff charges as negligence the following...