Masterson v. St. Louis Transit Co.

• Citation: 204 Mo. 507,103 S.W. 48
• Parties: MASTERSON et al. v. ST. LOUIS TRANSIT CO.
• Decision Date: 30 May 1907
• Court: United States State Supreme Court of Missouri

103 S.W. 48

204 Mo. 507

MASTERSON et al. v. ST. LOUIS TRANSIT CO.

Supreme Court of Missouri.

May 30, 1907.

1. STREET RAILROADS—INJURIES TO PERSON ON TRACK—ACTIONS—INSTRUCTIONS.

An instruction, in an action for the death of one who was struck by a street car, that, as to the alleged negligence of defendant in operating its car at an excessive speed, under the ordinances of the city defendant had a right to operate its car at a speed not exceeding 10 miles an hour, and that before the jury could find against the defendant for excessive speed they must find either that defendant operated its car in excess of 10 miles an hour, or at such a speed which under the evidence amounted to negligence, and unless the jury so found, and that such excessive speed was the cause of the death, then plaintiffs could not recover on account of such speed, was not objectionable as stating that the railway company had the absolute right to run its cars 10 miles an hour, regardless of the circumstances.

2. SAME.

Where, in an action for the death of one who was struck and dragged by a street car, plaintiffs did not ask an instruction submitting the question whether there was a failure to sound the gong, but the only issues in reference to defendant's negligence submitted to the jury under plaintiffs' instructions related to the alleged failure to stop the car in time to avoid the accident and running in excess of the speed ordinance, an instruction, for defendant, following the charge in the petition and in form the same as instructions given for plaintiffs, that plaintiffs could not recover on account of failure to sound the gong, unless the failure caused the death, was not ground of complaint by plaintiffs.

3. SAME.

An instruction, in an action for the death of one struck by a street car, that as to the charge of negligence, in that the motorman failed to stop the car after plaintiffs' son was in a position of peril, this principle of law did not apply unless plaintiffs' son was in such position a sufficient length of time to enable those in charge of the car to stop, or to check the same, so as to avoid striking him in the exercise of ordinary care and with the means at hand for stopping the car, was not erroneous as leaving out of consideration the duty of the motorman to be on the lookout to discover the peril.

4. TRIAL—INSTRUCTIONS—CONFORMITY TO EVIDENCE.

Where, in an action for the death of one who was struck by a street car, there was no evidence that would warrant submitting the proposition that the boy struck lost his life, not in being struck, but in being dragged, instructions that if the boy was of sufficient age, judging him by boys of his age, to appreciate the danger, and he went upon the track without looking or listening, so close to the car that the motorman with ordinary care could not avoid

hitting him, the defendant was not liable, and that if he undertook to cross the track in front of the car while the same was so close as to prevent the motorman in the exercise of ordinary care from stopping, whereby he was struck and killed, then plaintiffs could not recover, were not erroneous, in that they did not deal with the question of dragging after the boy was struck.

5. SAME—CONFORMITY TO ISSUES.

Where, in an action for the death of one who was struck and dragged by a street car, plaintiffs sought a verdict on the theory that the motorman failed to use ordinary care to stop the car after he discovered their son was in danger at a sufficient distance to have permitted the car to have been stopped before striking him, an instruction for defendant that if plaintiffs' son undertook to cross the street in front of the car, and while the same was so close as to prevent the motorman in the exercise of ordinary care from stopping so as to avoid striking him, whereby plaintiffs' son was struck, plaintiffs could not recover, was not erroneous, in that it failed to state that, though the boy may have come on the track so close to the car that it was impossible for the motorman to stop, yet, if that impossibility was caused by the excessive speed, the defendant was liable; that not being the theory on which the case was tried.

6. APPEAL — REVIEW—HARMLESS ERROR—EXCLUSION OF EVIDENCE.

In an action for the death of one who was struck and dragged by a street car, after a witness for plaintiff had testified that "he stumbled there—" it was objected by defendant that witness was stating a conclusion, which objection the court sustained, but the record showed that the objection was aimed at what witness had said in the sentence preceding, that "evidently, as I found later, there was a hole where the bricks had been sunken, was what caused the child's fall," and the witness had before stated that the child stumbled. Held, that there was no error in the ruling.

7. EVIDENCE — OPINION EVIDENCE—CONCLUSION OF WITNESS.

In an action for the death of one who was struck and dragged by a street car, evidence "that there were persons on the platform, and that the conductor evidently was talking to some one on the platform," was properly excluded as a conclusion of the witness.

8. WITNESSES — IMPEACHMENT—INCONSISTENT STATEMENTS—PLEA OF PRIVILEGE.

In an action for the death of one struck and dragged by a street car, evidence to impeach the motorman, who testified for defendant, that at the coroner's inquest, when asked to state the circumstances of the accident, he replied "I don't care to testify—I might incriminate myself," was properly excluded.

Woodson, J., dissenting in part.

In Banc. Appeal from St. Louis Circuit Court; John A. Blevins, Judge.

Action by Thomas M. Masterson and another against the St. Louis Transit Company. From a judgment for defendant, plaintiffs appeal. Affirmed.

See 98 S. W. 504.

Richard F. Ralph, and Barclay, Shields & Fauntleroy, for appellants. Boyle & Priest and Edward T. Miller, for respondent.

PER CURIAM.

The subjoined opinion, delivered in division No. 1, with paragraph 8 rewritten, is adopted as the opinion of the court in banc. All concur, except WOODSON, J., who concurs in all except paragraph 8, as to which he dissents.

VALLIANT, J.

Plaintiffs' son, who was about 11 years old, was struck and killed by one of defendant's street cars, and plaintiffs sue to recover damages under section 2864, Rev. St. 1899 [Ann. St. 1906, p. 1637], alleging that the accident was caused by the negligence of defendant's motorman operating the car. On the trial the verdict of the jury was for the defendant, judgment in accordance with the verdict, and the plaintiffs have appealed.

The petition alleges that, while plaintiffs' son was crossing the street, he accidentally stumbled and fell on the track of defendant's railroad; and, while he was in a condition of danger, and endeavoring to get off the track, a car of defendant's ran upon him and dragged him more than 50 feet, in consequence of which he received injuries of which he died. Following the general averment there are six specifications of negligence: (1) Running the car at a dangerous rate of speed, so that it was not under reasonable control; (2) running at a rate in excess of 15 miles an hour, in violation of a city ordinance forbidding the running faster than 8 miles an hour; (3) failing to give signals by bell to warn the boy of the approaching car; (4) failing to use ordinary care to discover the boy on the track in time to avoid the accident; (5) failing to use ordinary care to stop the car after discovering him in a position of danger; (6) failing to stop the car after the collision, so as to avoid dragging him along the track under the car. The answer was a general denial, and a plea of contributory negligence.

Plaintiffs' evidence tended to prove as follows: Defendant operated a double-track street railroad running east and west in Laclede avenue. On May 25, 1902, about 7:30 o'clock in the evening, plaintiffs' son, 10 years, 11 months, and 3 days old, was in the act of crossing the street from the south to the north side. When in the south track of the railroad he stumbled and fell, and while he was endeavoring to get up he was struck by an east-bound car, carried under the car, and dragged along the track a distance estimated by various witnesses from 60 to 92 feet, when the car was stopped. The child received such injuries that he died soon after. When he fell on the track, the car was 50 to 55 feet distant, no bell was being rung, the car was going 20 to 25 miles an hour, the motorman was not looking forward, his face was towards the north, and he seemed to be talking to some one on the front platform. The city ordinance limited the rate of speed of the car at that place to 10 miles an hour. A witness for plaintiffs, who had been in the employ of the defendant, and was the conductor of the car when this accident occurred but who was not in the service of the defendant at the time he testified, gave it as his opinion that, if the car had been going at the rate of 10 miles an hour, it could have been stopped by using the reverse within 5 or 10 feet, and, if going at 15 or 20 miles an hour, within 15 or 20 feet. The place of the accident was not a street crossing. It was opposite house No. 3010 Laclede avenue, between Garrison and Cardinal avenues. Garrison avenue is Thirtieth street, and Cardinal avenue is Thirty-First.

On the part of the defendant, the testimony tended to prove as follows: The car was going east on the south track. It stopped at Cardinal avenue to take on some passengers. The distance from Cardinal to Garrison avenue is about 300 feet. It was a Sunday evening about 7:30 o'clock. The car was crowded with passengers. After leaving Cardinal avenue, the car had gained a speed of 8 or 10 miles an hour, and, when it reached a point about 25 feet west of the point on the south sidewalk, where the boy was, he ran quickly from the sidewalk, aiming across the tracks in a northeasterly course, and when he came to the south...