Mullin v. St. Louis Transit Co.
| Decision Date | 30 May 1906 |
| Citation | 94 S.W. 288,196 Mo. 572 |
| Parties | MULLIN et ux. v. ST. LOUIS TRANSIT COMPANY, Appellant. [*] |
| Court | Missouri Supreme Court |
Appeal from St. Louis County Circuit Court. -- Hon. Jno. W McElhinney, Judge.
Affirmed.
Boyle & Priest, J. C. Kiskaddon and B. L. Matthews for appellant.
(1) By the first instruction given at the instance of plaintiffs they predicate their right to recovery solely on the failure of defendant's motorman to observe the vigilant watch ordinance. They abandon all other allegations of negligence contained in the petition. But by their third instruction it is declared to be the absolute duty of the motorman to sound his gong when approaching the crossing at or near which deceased was struck, if it was a public crossing, and if persons crossing thereon were liable to be struck, but the instruction has no conclusion. It does not require the jury to find that he did fail, nor what the consequences would be if they found that he did fail. Sounding the gong has nothing to do with keeping a vigilant watch. Therefore, the instruction as given is contradictory and misleading, and, if the first instruction was the one upon which plaintiffs relied for recovery, the third is erroneous and ought not to have been given. Chandler v. Kansas City G. Co., 174 Mo. 327; Newell v. Company, 5 Mo.App. 259; Thomas v. Babb, 45 Mo. 387; Dlauhi v Railroad, 105 Mo. 653. (2) The third instruction is erroneous for another reason. It does not follow that, because the crossing was a public one, or because persons crossing thereon were liable to be struck by a passing car, the motorman was bound to sound his gong. There was nothing to show that persons were peculiarly or even ordinarily liable to be struck by passing cars. This crossing was not at the intersection of a street, but was in the middle of a long block and consisted of stepping-stones over an ordinary macadamized street. It does not appear that it was in frequent use. Now, the only "circumstances" recited in the instruction are the facts that it was a public crossing and persons using it were liable to be struck by passing cars. From this the jury would naturally infer that these two facts were the "circumstances" which required them, if they believed the gong had not been sounded, to conclude that ordinary prudence had not been exercised. It is submitted that the two instructions, first and third, taken together, are misleading. The jury might think, and be ready to find, that the motorman had kept a vigilant watch, but simply because he had not sounded his gong conclude to find for plaintiff. Keown v. Railroad, 141 Mo. 94; Schmidt v. Railroad, 163 Mo. 645. (3) The court erred in refusing to give instruction 13, asked by defendant. If deceased was of such tender years as to be incapable of contributory negligence, and if the jury found the facts to be as recited in said instruction, then the casualty could only be an inevitable accident. The evidence fully warranted such an instruction. Wendall v. Railroad, 100 Mo.App. 562; Saxton v. Railroad, 98 Mo.App. 499; Lynch v. Railroad, 102 Mo.App. 642; Campbell v. Railroad, 175 Mo. 184; Maschek v. Railroad, 71 Mo. 276; Kennedy v. Railroad, 43 Mo.App. 1; Lee v. Jones, 181 Mo. 299.
A. R. Taylor for respondents.
(1) The first point for a reversal made by appellant is something quite involved and baffles legal analysis. We take it to be a contention, or claim, that instructions 1 and 3 of the instructions given at the request of the plaintiffs should not both have been given. The criticism seems to be that, as the first instruction given for plaintiffs was grounded for a recovery upon a failure by the motorman to observe the ordinance pleaded and offered in evidence, therefore, it was error to instruct the jury, as in the third instruction, as to the duty of the motorman to ring a bell as the car approached the crossing on which plaintiffs' child was killed. There appears no objection to instruction 1, which the court will see is based on the allegations of the petition and proof offered. The third instruction is founded not only on the general rule requiring ordinary care, but under the rule expressly held by this court. Schmidt v. Railroad, 163 Mo. 658; Koenig v. Railroad, 173 Mo. 725. (2) Appellant complains that the trial court modified its instruction as asked by inserting after the words "defendant's track," in the sixth line, the words "to exercise the ordinary care of a person of his age and discretion" to look and listen. The instruction as drawn omitted this qualification, and declared, as a matter of law, that a boy of his age and discretion must look and listen for an approaching car, and, without the modification, put the child upon the same level as an adult. Dlauhi v. Railroad, 105 Mo. 654; Spillane v. Railroad, 135 Mo. 415.
Plaintiffs' child, six years old, was struck and killed by one of defendant's street cars at a crossing in Easton avenue.
The petition states that the accident was caused by the negligence of defendant's servants in running the car, without giving any warning by bell or otherwise or using any care to watch for persons on the crossing or to control the movement of the car in approaching the crossing or to slacken its speed or stop it so as to avert the injury. The vigilant watch ordinance was also pleaded and negligence in failing to observe its requirements. The answer was a general denial and a plea of contributory negligence. There was a judgment for plaintiffs for $ 5,000, and defendant appealed.
The evidence in behalf of plaintiffs tended to prove as follows:
The scene of the accident was on or near a foot crossing leading south from the campus of the Christian Brothers College across Easton avenue between Kings Highway on the east and Academy avenue on the west. It was a paved crossing, leading into and from the college grounds; it was 540 feet west of Kings Highway and 160 feet east of Academy avenue. Easton avenue is a wide public street running east and west; the other two streets above named, the one east, the other west, of the crossing, run north and south, intersecting Easton avenue at right angles. Defendant operated a double-track street railroad in Easton avenue. From Academy avenue to Kings Highway along defendant's tracks the grade is slightly declined. The car which struck the plaintiff's child was going east, down the south track, running fast. The plaintiffs' witnesses did not undertake to state in miles per hour the speed at which the car was going, they only said it was going quite fast, but the motorman as a witness for defendant stated that he was going ten miles per hour.
Plaintiffs lived in this neighborhood, two or three blocks from the scene of the accident. The child had gone with his two brothers, the eldest of whom was eleven years old at the time of the trial, to a grocery store east of Kings Highway and they were returning home; there was another boy seven or eight years old with them. After crossing Kings Highway returning home they were walking west along the north sidewalk in Easton avenue when a wagon overtook them going in the same direction and the oldest boy got on behind the wagon; the other boys followed after it until they came to the steps leading into the college grounds, where they all stopped except the boy who was on the wagon, who went on in it. Then the three boys who stopped at the steps started to go across the street on this foot-crossing that has been mentioned. One of plaintiffs' witnesses said that one of the boys held the hand of this little one, leading him, the others did not so testify, but they all said that the children were in the act of crossing the street, the other two in front and the child who was killed in the rear; a mail carrier standing on the steps leading into the college grounds, seeing the car coming holloed "Stop;" the little one looked back when the man holloed, but did not stop. At the time the man holloed the child was in the space between the two tracks and the next instant he was in the south track and the car struck him; the two others got across safely. It was 160 feet from Academy avenue to the crossing; according to the plaintiff's testimony there was nothing to obstruct the motorman's view of this crossing and he could have seen these children if he had been looking; but the car came swiftly on, without signal or warning and without attempt to check the speed; it ran 100 or 130 feet after striking the child.
The main point of difference between the plaintiffs' testimony and the defendant's is in regard to the position of the wagon that has been mentioned. According to the plaintiffs' testimony the wagon was close to the curb along the north sidewalk, had passed beyond the crossing and had nearly or quite reached Academy avenue before the accident; whereas...
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