Mann v. Missouri, Kansas & Texas Railway Company
| Citation | 100 S.W. 566,123 Mo.App. 486 |
| Parties | WILLIAM MANN, by his Natural Guardian, Respondent, v. MISSOURI, KANSAS & TEXAS RAILWAY COMPANY, Appellant |
| Decision Date | 04 February 1907 |
| Court | Kansas Court of Appeals |
Appeal from Vernon Circuit Court.--Hon. Levin W. Shafer, Judge.
AFFIRMED.
Judgment affirmed.
George P. B. Jackson for appellant.
(1) The court erred in admitting evidence offered by the plaintiff over the objection of the defendant. Gurley v Railroad, 104 Mo. 223; Roddy v. Railroad, 104 Mo. 244; Froth v. Norcross, 111 Mo. 630; Yarnell v. Railroad, 113 Mo. 578; Barney v. Railroad, 126 Mo. 372; Fuback v. Railroad, 167 Mo. 215. (2) The court erred in refusing to sustain the defendant's demurrer to plaintiff's evidence, and also in refusing to give instruction numbered 1. The evidence clearly established that there was no negligence on the part of the defendant in the discharge of any duty to the plaintiff and that the defendant owed to the plaintiff no duty in regard to the condition of its track at the platform, nor the operation of its train while the plaintiff was asleep upon the edge of the platform as he testified he was; and that the plaintiff himself was clearly guilty of contributory negligence in exposing himself in the manner and under the circumstances which he did. Cases under point one. (3) Instruction numbered 7 should have been given because if plaintiff had the degree of intelligence and discretion required by that instruction he was equally chargeable with contributory negligence as though he were an adult and an adult would have been chargeable with contributory negligence under the same circumstances. Ridenhour v. Railroad, 102 Mo. 286; Lynch v. Railroad, 112 Mo. 437; Spillane v Railroad, 135 Mo. 425; Payne v. Railroad, 106 Mo. 585; Schmidt v. Railroad, 160 Mo. 58.
D. M. Gibson for respondent.
(1) The court committed no error in the giving and refusing instruction, and the case was tried on the correct theory. In support of this we select, out of a multitude of cases, the following: Guenthur v. Railroad, 108 Mo. 18; Morgan v. Railroad, 159 Mo. 262; Klockenbrink v. Railroad, 172 Mo. 686; Fevoons v. Railroad, 180 Mo. 208; Heinzle v. Railroad, 182 Mo. 557; Scullin v. Railroad, 184 Mo. 707; Spencer v. Railroad, 90 Mo.App. 91; Hutchinson v. Railroad, 88 Mo.App. 376. (2) It is not only the duty of the operators of a railroad, to stop the train under the condition of this case but before that point is reached they should give warning signals if they have time. Baird v. Railroad, 146 Mo. 281; Klockenbrink v. Railroad, 172 Mo. 690; Artolous v. Railroad, ___ So. 914. (4) The same degree of care is not required of a minor as of an adult. Anderson v. Railroad, 161 Mo. 424. (5) The speed at which the train run that struck plaintiff was negligence, at common law, under the circumstance. Petty v. Railroad, 179 Mo. 674; Klockenbrink v. Railroad, 172 Mo. 690, 81 Mo.App. 359; Taylor v. Railroad, 83 Mo. 390. (6) Instruction based on the common knowledge and experience of the jury proper. Brunk v. Telephone Co., 112 Mo.App. 628. (7) A party is not responsible for falling asleep, especially a boy only eleven years old. Bateman v. Insurance Co., 110 Mo.App. 447.
This action is to recover damages for personal injuries alleged to have been sustained in consequence of the negligence of defendant and is here on defendant's appeal from a judgment rendered against it. No evidence was offered by defendant. The material facts adduced by plaintiff thus may be stated.
The injury occurred in the afternoon of April 1, 1903. Plaintiff, then a boy twelve years old, resided with his father who was section foreman for defendant at Ellis, a small village on defendant's railroad where no station is maintained. Trains are not scheduled to stop there, but local trains do stop on signal. Business is conducted on a plank platform adjoining the main track on the north. This platform is one hundred and eighty feet long, twelve feet wide, about one foot above the level of the track and its south line is two feet north of the north rail of the track Plaintiff, who is of average intelligence, was employed by defendant to perform certain minor tasks to aid his father in the latter's employment. He met passing trains to receive and forward his father's official mail and also attended to the switch lights at Ellis and kept the lamps replenished with oil. The supply of oil for this purpose was taken from the defendant's store at Sedalia and whenever oil was needed it was plaintiff's duty to send his oil can by local freight to Sedalia to be refilled by defendant and returned to him through the same channel. On the day he was injured, plaintiff took his empty can to the platform for the purpose of delivering it aboard a local freight train bound for Sedalia. The train was late and, during the time he was waiting, plaintiff seated himself on the edge of the platform next the main track. Becoming drowsy, he lay down on the platform, drew up his feet and fell asleep. His body extended at a right angle with the course of the platform, his feet being towards the track and close to the edge of the platform. While asleep in this position, a passenger train passed by at full speed. Plaintiff's left leg was struck between the knee and ankle by something connected with the train and broken in two places. No one saw the injury, but there is evidence tending to show that the track was in a state of ill repair at this place and had slipped on its bed towards the platform from six to ten inches thereby causing the bodies of passenger coaches to project over the edge of the platform in passing and it is plaintiff's theory that the brace-rod of one of the coaches came so close to the surface of the platform that plaintiff's leg was caught and crushed. The train was past due and was running at the speed of thirty-five miles per hour. It approached from the west and when about half a mile distant gave one blast of the whistle. No other signal was given, nor was speed reduced. There was nothing to prevent the engineer from seeing the platform as he approached. Plaintiff's father, who appears here as guardian, testified that he was working about one and one-half miles east of Ellis and from his position could and did see the train from the time the whistle was sounded until the train passed him. As the engine went by, the fireman attracted his attention by motioning backward with his hand. Another witness who was working in a garden near the platform testified that after the engineer passed it, "He poked his head out of the window and began looking back and then he turned around like he was talking to the fireman . . . and then he poked his head out of the window again."
There is no evidence to indicate that the engineer observed the peril of plaintiff in time to have avoided the injury, but it is the contention of plaintiff that, had he been in the exercise of reasonable care with respect to watching the platform, he would have become aware of the danger to plaintiff in time to have prevented the injury either by stopping the train or by sounding the whistle. The failure to maintain a proper lookout is one of the acts of negligence pleaded. Other acts alleged on which a right of action is predicated are those involved in permitting the track to remain out of repair and in running the train at an excessive rate of speed.
Among the defenses pleaded in the answer is that of contributory negligence. Defendant asked the court to give an instruction in the nature of a demurrer to the evidence and now urges on our consideration the questions of law thus presented.
The conduct of a boy twelve years old should not be measured by the standard of care applied to an adult because the immaturity of youth ordinarily embraces not only an imperfect knowledge of natural facts and laws and of the proper relation between cause and effect, but when possessed of these elements necessary to the exercise of reasonable care it still lacks the discretion, thoughtfulness and judgment presumed to be an attribute of the ordinarily prudent adult and which may be said to come only with experience. Thoughtlessness, impulsiveness and indifference to all but patent and imminent dangers are natural traits of childhood and must be taken into account when we come to classify the conduct of a child. [...
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