Meeker v. Metropolitan Street Railroad Co.

• Citation: 77 S.W. 58,178 Mo. 173
• Parties: MEEKER et al. v. METROPOLITAN STREET RAILWAY COMPANY, Appellant
• Decision Date: 25 November 1903
• Court: United States State Supreme Court of Missouri

77 S.W. 58

178 Mo. 173

MEEKER et al. v. METROPOLITAN STREET RAILWAY COMPANY, Appellant

Supreme Court of Missouri, First Division

November 25, 1903

Appeal from Jackson Circuit Court. -- Hon. Jas. H. Slover, Judge.

Affirmed.

Jno. H Lucas for appellant.

(1) The court erred in admitting incompetent evidence, namely, that of an alleged expert, as to distance in which a train could be stopped. Maher v. Railroad, 64 Mo. 276; Mammerberg v. Railroad, 62 Mo.App. 567; Senn v Railroad, 108 Mo. 150; Turner v. Hoar, 114 Mo 335; Benjamin v. Railroad, 50 Mo.App. 602; Culbertson v. Railroad, 140 Mo. 59; Ruschenberg v. Railroad, 161 Mo. 81. (2) The court erred in refusing to sustain the demurrer offered by the defendant. There was no evidence of any negligence on the part of the gripman. Kennedy v. Railroad, 43 Mo.App. 3; Boland v. Railroad, 36 Mo. 484; Mashek v. Railroad, 71 Mo. 276; Kreis v. Railroad, 148 Mo. 321; Chilton v. Railroad, 152 Pa. St. 425; Fenton v. Railroad, 126 N.Y. 625; Flanagan v. Railroad, 163 Pa. St. 102; Tishacek v. Railroad, 110 Wis. 417; Campbell v. Railroad, 104 La. 183; Sherman v. Railroad, 72 Mo. 62; Culbertson v. Railroad, 140 Mo. 35; Hays v. Railroad, 51 Mo.App. 438. (3) The court erred in giving instructions for the plaintiff, refusing those asked by the defendant, and giving instructions of its own motion. Dunn v. Railroad, 98 Mo. 653; Iron Mountain Bank v. Murdock, 62 Mo. 70; Schlereth v. Railroad, 96 Mo. 509; Kennedy v. Railroad, 70 Mo. 252; Williams v. Railroad, 96 Mo. 275. (4) The verdict was contrary to the law and unsustained by the evidence. See authorities above cited.

Scarritt, Griffith & Jones for respondents.

(1) (a) The objections to questions asked witness Hite are too general to be considered. Schmidt v. Railroad, 163 Mo. 651; Peck v. Chouteau, 91 Mo. 144; Schlereth v. Railroad, 115 Mo. 107. (b) The matters suggested are immaterial and properly omitted from the hypothetical question asked. Rogers on Expert Testimony (2 Ed.), p. 21; 12 Am. and Eng. Ency. Law (2 Ed.), p. 474; Schafstette v. Railroad, 74 S.W. 828; Russ v. Railroad, 112 Mo. 49; Goodwin v. State, 96 Ind. 574. (c) Appellant waived demurrer to plaintiff's evidence by putting in its own evidence, and not requesting a peremptory instruction at end of all the evidence, but instead asking instructions submitting the issues to the jury. Bray, Adm'r, v. Seligman, 75 Mo. 31; Hopkins v. M. W. A., 94 Mo.App. 409; Garst v. Good, 50 Mo.App. 151; Minton v. Steele, 125 Mo. 181; McKinney v. Guham, 38 Mo.App. 344; Jennings v. Railroad, 99 Mo. 399; Merc. Co. v. Burrill Sisters, 66 Mo.App. 117. (2) There was ample evidence upon which to submit case to the jury. (a) All testimony favorable to plaintiffs must be taken as true, upon a demurrer. Cogan v. Railroad, 73 S.W. 741; Barth v. Railroad, 142 Mo. 549. (b) Greater care is required of those operating railway on a city street, where people, especially children, may be expected to be on or near the tracks. Tishacek v. Railroad, 110 Wis. 417; Morgan v. Railroad, 159 Mo. 281; Livingston v. Railroad, 170 Mo. 470; Boland v. Railway, 36 Mo. 491. (c) Negligence, under all the circumstances, was a question for the jury. Klockenbrinck v. Railroad, 72 S.W. 902; Baird v. Railroad, 146 Mo. 280; Gratiot v. Railroad, 116 Mo. 466. (3) No error in court's modifying defendant's instruction 8. (a) Instructions are given and should be read in the light of the facts, and in connection with the other instructions in the case. Morgan v. Railroad, 159 Mo. 282; Donahoe v. Railroad, 83 Mo. 557. (b) The very language used by the court in modifying this instruction has been expressly approved by this court. Bunyan v. Railroad, 127 Mo. 12; Livingston v. Railroad, 170 Mo. 452.

OPINION

MARSHALL, J.

This is an action, under the statute, by the parents, to recover five thousand dollars damages for the death of their four-year-old daughter, Herrietta, caused by being run over by one of the defendant's cable cars, at the corner of Summitt avenue and Twenty-third street, in Kansas City, on July 9, 1900, at about 9 o'clock a. m. There was a judgment below for the plaintiffs for the amount claimed, and the defendant appealed.

The negligence charged in the petition is that the defendant's servants "saw the child upon the tracks of said defendant and approaching there at said crossing of said Summitt and Twenty-third streets in a position of imminent peril, or when by the exercise of ordinary care they might have seen said child upon said tracks and approaching thereto in such position of imminent peril in time to have stopped said train of cars and avoided the injury complained of." And further, that the operatives of the cars failed to ring the bell or to give any notice or warning to the plaintiff's daughter of the approach of the car.

The trial developed the facts to be as follows: Summitt avenue runs north and south. Twenty-third street runs east and west and is sixty feet wide. Summitt avenue slopes downward from the north towards Twenty-third street, on a two per cent grade, and is level where it intersects Twenty-third street. Beginning at the south line of Twenty-third street Summitt avenue again slopes towards the south, on a grade of six and four-tenths feet to the hundred. The defendant has a double-track, standard-gauge, cable road on Summitt avenue. The south-bound cars run on the west side of Summitt avenue. The train consisted of two cars, a gripcar and a trailer, and together the train was forty-six feet long. From the curb line on the west side of Summitt avenue at the south side of Twenty-third street, it is fourteen feet to the east rail of the southbound track. The curb is six inches thick. In the sidewalk there is a water plug which stands ten and a half feet west of the curb. So that from the water plug to the east rail of the south-bound track it is twenty-five feet. The cars run at the rate of nine miles an hour, or thirteen and one-half feet a second. The day was clear and the tracks and street were dry. The locality is near the southwest terminus of the defendant's road. The plaintiffs live on Twenty-third street, two and a half blocks west of Summitt avenue. The father is a barber and was agent for a laundry, and his place of business was on the west side of Summitt avenue about a block south of Twenty-third street.

About nine o'clock on July 9, 1900, the mother started with her little daughter to go down town. When she reached the southwest corner of Summitt avenue and Twenty-third street, she sent the child along the west side of Summitt avenue, to take a bundle of laundry to her father's shop, and told her when she returned to wait on that corner for her, and she went across Summitt avenue and a half block east thereof, on the north side of Twenty-third street to a grocery store, to make some purchases. The child took the bundle to her father and returned in safety to the southwest corner of Summitt avenue and Twenty-third street, and stood or was "lifting her little skirts and dancing" at or near the water plug above described. The mother completed her purchases at the grocery store and proceeded to return for the child. She walked westwardly along the north side of Twenty-third street, and when she reached the car tracks on Summitt avenue, on the north line of Twenty-third street, she saw her child dancing on the sidewalk at the southwest corner as aforesaid; at that time a train of cars came along and she had to stop east of the track to let it pass. It ran across Twenty-third street and the next thing she knew the car had run over her child and killed her. She did not see her child leave the sidewalk and go into the street, for the train of cars was then between her and the child so she could not see her. She says that no bell was rung or warning given when the car approached Twenty-third street, and that the gripman was sitting on the rail on the left-hand side of his box in the gripcar, with one hand resting on the rail on each side of him, and his back towards the east, and was looking towards the rear of the car and talking to some one who was back there.

All the witnesses for both the plaintiff and the defendant, who saw the child, say she was on the southwest corner of said streets, and all who saw her move say she walked from the water plug across the sidewalk and stepped from the curb into the street, and walked directly eastwardly across Summitt avenue on a line with the south line of Twenty-third street. The gripman says he rang his bell when he was opposite the Chadwick Flats, which was north of Twenty-third street and where Twenty-second street would intersect Summitt avenue if it was cut through, and that he did not ring it any more.

The gripman then testified as follows: "I was going south, and just as I entered the street I saw a little girl standing on the corner of the curbing about five or six feet south of the street line running east and west. She was standing on the curb on the west side of the street running south, and a little south of the curb that went east and west. She was standing there just apparently quiet, and as I approached, my car got very near opposite and she gave a jump and started all at once, and I pulled my brakes as suddenly as possible, and brought my car to a stop as quick as I could make it. I had my car very nearly opposite her, well, it lacked probably five or six feet of being opposite when she made the jump and started across the track, so I stopped my car as quick as possible. I think I stopped my car within twelve or fifteen feet."

He further said he hollered to her just as she was running across the street, and could not remember what he said. He further testified:

"Q. You anticipated that she would go in front of the car? A. That she would...