Muehlhausen v. St. Louis R. Co.

• Decision Date: 06 December 1886
• Citation: 2 S.W. 315,91 Mo. 332
• Parties: MUEHLHAUSEN and another v. ST. LOUIS R. CO.
• Court: Missouri Supreme Court

2 S.W. 315

91 Mo. 332

MUEHLHAUSEN and another v. ST. LOUIS R. CO.

Supreme Court of Missouri.

December 6, 1886.

1. NEGLIGENCE — STREET-RAILWAY COMPANY — INJURY TO CHILD — CONTRIBUTORY NEGLIGENCE.

In an action against a street railway company for damages for the killing of the plaintiff's minor child, where it appears that deceased was a passenger on defendant's car, and the driver in charge of the car was guilty of negligence, or want of prudence or skill, in managing the car, and thereby deceased was jolted or thrown from the car, or, while attempting to alight from the front platform, was killed, and the deceased was then and there exercising such ordinary care and prudence as could be reasonably expected from a child eight years old, the defendant is liable.

2. SAME — EVIDENCE — MATERIALITY.

In such an action, where it appears that deceased was riding on the defendant's car at the time the accident happened, and that no fare had been paid by him, or demanded of him, testimony tending to show what was the effect and result to boys who jumped upon the cars at the portion of the road where the accident occurred, and the effect and danger to them of stopping the car, and putting them off, and what the boys would do in that event, and why the driver did not stop and put this boy off, was properly rejected as immaterial, as it would not operate to relieve the defendant from liability for an injury inflicted by its negligence while the boy was on the car by the consent of the person in charge.

3. SAME — PASSENGER — PAYMENT OF FARE.

Where it appears that the deceased had not paid any fare at the time of the injury, yet if he was on the car with the knowledge and permission of defendant's employe in charge, then the deceased was a passenger, and entitled to the same care and protection as if he had paid his fare.

4. SAME — STEALING A RIDE.

Where it appears that deceased got on the car merely for the purpose of riding a short distance, and then jumping off, without any intention of paying his fare, and did not pay fare, nor offer to pay it, then he was not a passenger, even though the driver knew he was on the car, unless the driver consented to his being and remaining on.

5. SAME — GATES ON PLATFORM OF CAR — INSTRUCTIONS — UNEXPLAINED TERM.

In such an action, an instruction given the jury describing the kind of gates that defendant was bound to provide for the front platforms of its cars, and that if, by the neglect of the driver, "a gate" was not provided to the front platform on which deceased was riding, whereby he came to his death, without negligence on his part, defendant is liable, is not objectionable because of the use of the words "a gate," instead of "such gate," as the kind of gate defendant was required to keep was explained in the instruction; nor is it objectionable for instructing the jury to find defendant liable without finding that deceased was a passenger, when they had been previously instructed that they must find that deceased was a passenger before they could find defendant liable.

6. SAME — "PRUDENCE AND CARE" — "REMOTELY."

An instruction given the jury that, "although the deceased child may have been guilty of misconduct, or failed to exercise ordinary care and prudence, while on the defendant's car, which may have remotely contributed to his death, yet, if the employe of defendant was guilty of negligence in the management of the car, which negligence was the immediate cause of death, and with the exercise of prudence and care by said employe, after the danger was impending, said injury and death might have been prevented, the defendant is liable in this suit," is not objectionable, because the question of saving the boy by prudence and care after the danger was impending is not in the case, as the danger was impending when he was standing on the front platform, if the gate was open, as the evidence tended to show. It is not objectionable as too general, as it is not broader than the claim in the petition, and is not bad by reason of the use of the words "prudence and care," and "remotely," without further explanation; following Morrissey v. Wiggins Ferry Co., 43 Mo. 384.

7. SAME — "CONTRIBUTORY NEGLIGENCE" — EXPLAINED IN PREVIOUS INSTRUCTION.

In such an action, an instruction is not objectionable because of the use of the term "contributory negligence," without explaining to the jury the meaning of that term, when such instruction refers to other instructions given, in which the meaning of the term is explained.

8. SAME.

An instruction to the effect that, under the pleadings and evidence, the plaintiff could not recover, was properly refused, when it appears from the evidence that the boy stated that he "fell off the front platform" of defendant's car, and it further appears that the evidence tended to show that there was no gate to keep him from falling off, as required by law, and that the car was going around a curve at a rate of about five miles an hour.

9. SAME — OMISSION OF STATUTORY REQUIREMENTS — STREET — GUARDS OR GATES TO FRONT PLATFORMS OF CARS — MISSOURI ACTS 1869, § 4, PAGE 207, AND JANUARY 16, 1860.

In such an action, under section 4, Acts 1869, (Laws Mo. 207,) providing that "no passenger shall be permitted to get on or off any car by the front platform while the car is in motion, and each car shall be furnished with such adjustable gate or guard as shall prevent it," the defendant is liable for an injury resulting from the lack of such gate, notwithstanding the provision of act January 16, 1860, which declares that "said railroads shall not be liable for injuries occasioned to persons by reason of their getting on or off the cars by the front or forward end of the car."

10. SAME — INSTRUCTIONS REFUSED, COVERED BY INSTRUCTIONS GIVEN.

In such an action, the refusal to give an instruction to the effect that, if the jury believed that deceased was not a passenger on the car, they are to find for the defendant, is not reversible error, when instructions to the same effect were given.

Appeal from St. Louis court of appeals.

Action against a street railway company to recover damages for the killing of the respondent's child. At the trial the court, at the plaintiff's request, gave the following instructions, to which the defendant excepted:

"(1) The court instructs the jury that if they believe from the evidence that, under the instruction defining what makes a person a passenger, the deceased was a passenger on defendant's car, and that the driver of the defendant, while in charge of said car, was guilty of negligence, carelessness, or want of prudence or skill in managing or conducting said car, and thereby the deceased was jolted or thrown from said car, or was thereby, without hinderance, enabled to attempt to alight from said car from the front platform thereof, and in consequence thereof injured and killed; and if the jury further find that the deceased was then and there exercising such ordinary care and prudence, as a passenger, as could reasonably be expected from a child of his age, — then the defendant is liable, and the jury will find for the plaintiffs, providing they also find from the evidence that the deceased was an unmarried minor at the time of his death, and that the plaintiffs are his parents.

"(2) Although the jury may find that the deceased, Eddie Muehlhausen, had not paid any fare at the time of the injury, yet if the jury further find, from the evidence, that the deceased was on defendant's car with the knowledge and permission of defendant's employe in charge of said car, then the deceased was a passenger, and entitled to the same care and protection as if he had paid his fare.

"(3) The jury are instructed that the care and foresight required of a child is not the same as that which is required of a grown person, and that in the case of a child it is required to act with the care and prudence which can reasonably be expected of its capacity and age; and, when it manifests as much care and prudence as can be reasonably expected from it, the child is not guilty of negligence. And if the jury find from the evidence that deceased was of the age of eight years, and did not possess the discretion of an adult or grown person at the time of the injury, then the jury should consider these facts in determining whether or not plaintiffs' child, Eddie, was guilty of negligence at the time of said injury that contributed to cause said injury.

"(4) The jury are instructed that it is by law made the duty of defendant to furnish its cars with such adjustable gates or guards as shall effectually prevent passengers from getting on or off any car by the front platform while the car is in motion; and if the jury find from the evidence that the driver of defendant's car neglected to keep a gate or guard across the east side of the front platform of car No. 10, so as to prevent passengers from getting on or off said front platform, that by reason thereof deceased came to his death, and that deceased was not guilty of any want of ordinary care and prudence in his conduct on said occasion, such as could reasonably be expected from a boy of his age, — then the defendant is liable in this suit.

"(5) Although the deceased child may have been guilty of misconduct, or failed to exercise ordinary care and prudence, while on defendant's car, which may have remotely contributed to its death, yet if the employe of the defendant was guilty of negligence in the management of car No. 10, which negligence was the immediate cause of the death, and with the exercise of prudence and care by said employe, after the danger was impending, said injury and death might have been prevented, the defendant is liable in this suit.

"(6) If the jury believe from the evidence that plaintiffs were at the time of the injury and death of Eddie Muehlhausen the parents of said Eddy, and the deceased was an unmarried minor at that time, and that said Eddy died from injuries...