Meyer v. Southern Ry. Co.

• Decision Date: 23 June 1896
• Citation: 135 Mo. 512,36 S.W. 367
• Parties: MEYER v. SOUTHERN RY. CO.
• Court: Missouri Supreme Court

36 S.W. 367

135 Mo. 512

MEYER v. SOUTHERN RY. CO.

Supreme Court of Missouri, Division No. 1.

June 23, 1896.

DEATH BY WRONGFUL ACT — STATUTORY ACTION — PLEADING — TRIAL — INSTRUCTIONS.

1. In an action to recover the statutory forfeiture of $5,000 for the death of a person occasioned by the negligence of a driver of a street car, under the provisions of Rev. St. 1889, § 4425, the setting out in the petition of a city ordinance regulating the running of street cars, and prescribing the duties of those in charge of them, together with an allegation that the death of plaintiff's decedent was caused by a failure to observe such ordinance, is not a statement of a separate cause of action based upon a violation of the ordinance, but the pleading of such violation as furnishing proof of the negligence of the driver, the consequence of which, when resulting in a death, is fixed by the statute.

2. The giving of an instruction at the request of one party, which correctly states the law so far as it goes, but is misleading because of the omission of other statements in connection, is not ground for reversal where another instruction, given at the request of the adverse party, supplies the omission.

Appeal from circuit court, St. Louis county; Randolph Hirzell, Judge.

Action by August Meyer, administrator of Christian Senn, against the Southern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Lubke & Muench, for appellant. Dodge & Mulvihill, for respondent.

MACFARLANE, J.

This is the third appeal. The suit was originally prosecuted in the names of Christian Senn and his wife to recover damages for the death of their infant son, Charles, who was killed by being run over by a car of defendant street-railway company in the city of St. Louis. Pending the first appeal, the wife died, and the suit was continued in the name of Christian Senn, the father of the child. On the second appeal the judgment was reversed, and a retrial ordered. The case was again tried, and resulted in a verdict for plaintiff, and defendant again appealed. Pending this appeal, Christian Senn has died, and the suit has been revived and is now prosecuted in the name of his administrator. The pleadings and evidence are substantially the same as upon the former appeals, which will be found reported in 108 Mo. 146, 18 S. W. 1007, and 124 Mo. 623, 28 S. W. 66. A statement of the facts accompanied the first opinion, which need not be repeated. An ordinance of the city, which had been accepted by defendant, required the conductor and driver of each car to keep a vigilant watch for all vehicles and persons on foot, especially children, either on the track or moving towards it, and on the first appearance of danger to such persons or vehicles to stop the car within the shortest time and space possible. The petition contained these charges: "That the failure of said driver of said car of defendant to keep such proper and vigilant watch ahead for all persons on foot, and especially for the said Charles C. Senn, and the failure of said driver to stop said car within the shortest time and space possible, and failure of the defendant to keep the provisions of said ordinances as it had agreed to do, directly contributed to cause the injuries hereinafter complained of. That on said 1st day of May, 1888, at said point on South Broadway, the said driver of said car negligently and carelessly allowed his team to run against and knock down the said Charles C. Senn as he was crossing said track, and negligently failed to stop his said car in the shortest time and space possible, and negligently drove over him, the wheel of said car passing over his limbs, and greatly mangled and crushed his leg about the knee joint, and otherwise bruising his body, so that afterwards, to wit, on the 3d day of May, 1888, said Charles C. Senn died."

On the question of the contributory negligence of the parents of the child the court gave to the jury these two instructions; the first at the request of plaintiff, and the second at that of defendant: "No. 3. The court instructs the jury that in determining whether or not the plaintiff and his former wife, Mary, contributed by their negligence in the custody and care of their child, C. C. Senn, to its injury and death, you are to consider whether or not they exercised that degree of care, caution, and watchfulness over their said child, C. C. Senn, in sending him across the street for the cows, which was reasonable and proper for parents in their circumstances in life, as shown by the evidence." "No. 8. The court also instructs the jury that plaintiff is not entitled to recover in this case if from the evidence the jury believe that the plaintiff, upon his part, at and immediately preceding the injury of his child, failed to exercise that reasonable care and caution to protect his child from injury which a reasonably prudent parent would have exercised under the like circumstances. Therefore, if from the evidence the jury believe that with plaintiff's knowledge and consent the child, Charles Senn, was sent out upon and over the public street and over the track of defendant company, to help bring home some cows; that plaintiff saw the boy returning from the opposite side of the street, helping to drive the cows over defendant's track; that plaintiff also saw the car passing down towards the place where the cows and boy were about to cross the track; that plaintiff was then standing at a point from which he had a full view of the car, the cows, and the boy, and was near enough to have given warning of danger to the boy or to the driver of the car; and if from the evidence you further believe that the boy was then...