Lynch v. The Metropolitan Street Railway Company

• Citation: 20 S.W. 642,112 Mo. 420
• Parties: Lynch v. The Metropolitan Street Railway Company, Appellant
• Decision Date: 29 November 1892
• Court: Missouri Supreme Court

20 S.W. 642

112 Mo. 420

Lynch v. The Metropolitan Street Railway Company, Appellant

Supreme Court of Missouri, Second Division

November 29, 1892

Appeal from Jackson Circuit Court. -- Hon. James Gibson, Judge.

Reversed and remanded.

Pratt Ferry & Hagerman for appellant.

(1) The court below erred in giving plaintiff's instruction 4 and other conflicting instructions, and in refusing defendant's instruction 7. Thomas v. Babb, 45 Mo. 384; Goetz v. Railroad, 50 Mo. 472; Henschen v. O'Bannon, 56 Mo. 289; Simmons v Carrier, 60 Mo. 581; State v. Simms, 68 Mo 305; Frederick v. Allgaier, 88 Mo. 598; Spohn v. Railroad, 101 Mo. 417. (2) The court erred in giving plaintiff's instruction 6, and in refusing defendant's instructions 10 and 14. State v. Hecox, 83 Mo. 531; Barr v. Armstrong, 56 Mo. 577; Wilmott v. Corrigan, 17 S.W. 490; Tucker v. Railroad, 26 N.E. 916. (3) The court erred in giving plaintiff's instruction 2. This instruction assumed that the deceased actually had in mind the requirements of the ordinance and relied thereon. The presumption referred to (if the instruction properly states the law) was one of fact (Justice v. Lang, 52 N.Y. 323), and should not have been mentioned to the jury when the issue as to contributory negligence was submitted. Moberly v. Railroad, 98 Mo. 183; Rapp v. Railroad, 17 S.W. 487; Ham v. Barrett, 28 Mo. 388, 389; Chouquette v. Barada, 28 Mo. 491, 499; Schulter v. Ins. Co., 1 Mo.App. 285, 289; Railroad v. Stebbing, 62 Md. 504; Railroad v. Brazil, 72 Tex. 233; 2 Thompson on Trials, sec. 2290. The instruction is also vulnerable to the objection that it singles out and improperly comments upon an isolated matter. Anderson v. Kincheloe, 30 Mo. 520; Clark v. Hammerle, 36 Mo. 620; Chappell v. Allen, 38 Mo. 213; Fine v. Schools, 39 Mo. 59, 67; Jones v. Jones, 57 Mo. 138; Wilmott v. Railroad, 106 Mo. 535. The right to presume that a railroad company will comply with the law as to signals only exists where the traveler looks and listens before crossing the track, and then neither knows nor can know to the contrary. Beach on Contributory Negligence, sec. 13; 1 Shearman & Redfield on Negligence [4 Ed.] sec. 92; Fletcher v. Railroad, 64 Mo. 484, 489; Zimmerman v. Railroad, 71 Mo. 476; Hanlon v. Railroad, 104 Mo. 381; Dlauhi v. Railroad, 105 Mo. 645. (4) So the court erred in giving plaintiff's instruction 8, and in refusing defendant's instruction 15. The evidence warranted the submission of the contributory negligence of Mrs. Lynch. Reilly v. Railroad, 94 Mo. 600; Lovett v. Railroad, 6 Allen, 557; Schierhold v. Railroad, 40 Cal. 447. (5) The court also erred in giving plaintiff's instructions 9 and 10 requiring the jury to assess the damages at $ 5,000 absolutely. The want of bells was not negligence whilst running, conducting or managing a locomotive or train of cars. First. The legislature never intended that a horse car should be included within the language of Revised Statutes, section 4426. Railroad v. Railroad, 2 Duv. (Ky.) 178; Thomas v. Simon, 25 P. 147; Sedgwick on Constitutional & Statutory Law, 225. Second. Because the negligence aimed at by the first part of section 4425 was such as was in the act of moving the car. Crumpley v. Railroad, 98 Mo. 34; King v. Railroad, 98 Mo. 235; Rapp v. Railroad, 106 Mo. 423. Third. The horse car is covered by the third part of section 4425, referring to the negligence of the driver of a stage-coach or other public conveyance. But the failure of the company to provide bells as required by ordinance was not negligence whilst driving the car. Crumpley v. Railroad, 98 Mo. 34; King v. Railroad, 98 Mo. 235; Rapp v. Railroad, 106 Mo. 423. Fourth. A failure of the company to provide bells is the act of negligence charged and proven. To that act plaintiff is confined. Waldhier v. Railroad, 71 Mo. 514; Schlereth v. Railroad, 96 Mo. 509. A want of bells occasioned by the defendant's failure to furnish same was a defect in the machinery and appliances. Com. v. Gaslight Co., 12 Allen, 75. For such a failure the penalty clause of the statute can only be invoked by passengers. Higgins v. Railroad, 36 Mo. 418; Sawyer v. Railroad, 37 Mo. 240; Elliott v. Railroad, 67 Mo. 272; Holmes v. Railroad, 69 Mo. 536; Flynn v. Railroad, 78 Mo. 201.

Beebe & Watson and F. W. Randolph for respondent.

(1) Plaintiff's instructions do not conflict with defendant's. (2) The evidence in this case fully warranted the submission of the driver's negligence in not discovering deceased in the act of returning upon defendant's track in time to have prevented running over and killing him. (3) The court did not err in giving plaintiff's instruction number 6, as it properly declares the law, and did not err in refusing to give defendant's numbers 10 and 14. Plaintiff's instruction has been approved in express terms by this court in Ostertag v. Railroad, 64 Mo. 421-424. The distinction between the degree of care required of a boy and an adult was also noticed in defendant's instruction number 11. (4) The court did not err in giving plaintiff's instruction number 2. This instruction asserts a correct proposition of law. Wilkins v. Railroad, 101 Mo. 93; Shearman & Redfield on Negligence [3 Ed.] sec. 31; Stepp v. Railroad, 85 Mo. 229; Petty v. Railroad, 88 Mo. 320; O'Connor v. Railroad, 94 Mo. 157; Schlereth v. Railroad, 96 Mo. 290; Agan v. Shannon, 103 Mo. 661; Hart v. Devereux, 41 Oh. St. 565; Meeks v. Railroad, 38 Oh. St. 632; Baker v. Pendergast, 32 Oh. St. 494; Correll v. Railroad, 38 Iowa 125; Newson v. Railroad, 29 N.Y. 389; Kellogg v. Railroad, 26 Wis. 225; Robinson v. Railroad, 48 Cal. 421. The instruction is not a comment on any evidence in the case. (5) A child is not required to exercise as high a degree of care as an adult. Shearman & Redfield on Negligence [4 Ed.] sec. 73, p. 105; Thurber v. Railroad, 60 N.Y. 326; Ostertag v. Railroad, 64 Mo. 421; Railroad v. Gadman, 15 Wall. 401; Railroad v. Stout, 17 Wall. 657; Eswin v. Railroad, 96 Mo. 296. (6) The evidence did not warrant the submission of plaintiff's negligence. Defendant charged in its answer that deceased was guilty of negligence which directly contributed to his injury. And also received instructions based on the assumption that deceased was old enough to be guilty of negligence. If the boy was old enough to be guilty of negligence, then the negligence of the mother did not enter into the case. Thurber v. Railroad, supra. (7) The court did not err in giving plaintiff's instruction number 9 as to the measure of damages. The petition charged that defendant negligently and wrongfully failed to provide bells on said team of mules. This charge of negligence against defendant is a charge against each and all of its officers, agents, servants and employes who were in any way connected with the violation of the ordinance. Any violation of the ordinance was negligence within the first clause of section 4425, Revised Statutes. Kenny v. Railroad, 105 Mo. 270. Street railways are included in said first clause of said section. Liddy v. Railroad, 40 Mo. 506; Meyers v. Railroad, 43 Mo. 523; O'Flaherty v. Railroad, 45 Mo. 70; Werner v. Railroad, 81 Mo. 368; Welsh v. Railroad, 81 Mo. 469; Farris v. Railroad, 80 Mo. 325.

OPINION

Gantt, P. J.

On the fourth day of July, 1888, Richard Lynch, a boy between ten and eleven years of age, residing with his widowed mother in Kansas City, Missouri, 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 ten 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: First. In 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 following instructions for plaintiff:

"1. The jury is...