Nipper v. Metropolitan Street Railway Company
| Decision Date | 06 June 1910 |
| Citation | 129 S.W. 439,145 Mo.App. 224 |
| Parties | HERMAN F. NIPPER et al., Appellants, v. METROPOLITAN STREET RAILWAY COMPANY, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Wm. B. Teasdale, Judge.
Judgment reversed and cause remanded.
Frank P. Walsh and E. R. Morrison for appellants.
(1) Defendant's first instruction ignores the last chance doctrine. Davis v. Mann, 10 M. & W. 546; Huelsenkamp v. Railroad, 37 Mo. 537. (2) Defendant's seventh instruction is opposed to every principle of the last chance doctrine. Waddell v Railroad, 113 Mo.App. 685; Cole v. Railroad, 121 Mo.App. 612; Eppstein v. Railroad, 197 Mo. 737.
John H Lucas and C. S. Palmer for respondent.
(1) Appellants cannot complain that respondent's first instruction submitted the issue of plaintiffs' contributory negligence, where appellants in two instructions submitted the same issue. Olferman v. Railroad, 125 Mo. 408. (2) There was no error in defendant's instructions Nos. 1, 4 and 7, because they did not refer to the last chance doctrine. It is sufficient if all the instructions taken together present the issues justified by the pleadings and the evidence. Owens v. Railroad, 95 Mo. 169; Hughes v. Railroad, 127 Mo. 447; State ex rel. v. Hope, 102 Mo. 410; Heinzle v Railroad, 213 Mo. 102; Cornovski v. Transit Co., 207 Mo. 275.
This is a statutory action prosecuted by plaintiffs, who are husband and wife, to recover five thousand dollars as a penalty for the alleged negligent killing of their seven-year-old son, Herman Albert Nipper, by a street car operated by defendant on Fifth street in Kansas City. The answer was a general denial and a plea of contributory negligence on the part of the child. A trial to a jury resulted in a verdict and judgment for defendant. An appeal was allowed plaintiffs to the Supreme Court but under the recent act of the Legislature increasing the jurisdiction of the courts of appeals, the cause was transferred to this court. The petition alleges "that the death of said Herman Albert Nipper was directly occasioned by the negligence, carelessness and unskillfulness of the defendant, its agents, servants and officers whilst running, conducting and managing said electric car as aforesaid, in the following respects, to-wit:
1st. The said agents, servants and officers of the defendant in charge of said car, negligently, carelessly and unskillfully ran the same against, upon and over the body of the said Herman Albert Nipper.
2nd. The agents, servants and employees of the defendant in charge of said car as aforesaid were negligently and carelessly running the same at an excessive high and dangerous rate of speed.
3rd. The said agents, servants and employees of the defendant in charge of said car as aforesaid negligently and carelessly ran the same against, upon and over the body of the said Herman Albert Nipper without giving to said Herman Albert Nipper any signal warning of the approach of said car.
4th. That said Herman Albert Nipper at and immediately prior to his death was in the act of approaching, upon and near defendant's said track in a position of imminent peril and the agents, servants and employees of defendant in charge of said car as aforesaid knew, or by the exercise of ordinary care would have known, of his presence upon and near said track and of his perilous position in time to have stopped or slackened the speed of said car and have avoided injuring him, but negligently and carelessly failed to do so."
The evidence of plaintiffs tends to show the following facts: The boy was killed about 7:30 p. m., September 5, 1901, on Fifth street between Campbell and Harrison streets. That part of the city is thickly populated by working people and plaintiffs and their seven children lived about a block from the scene of the tragedy. The boy had gone out to play, but his parents did not know he was playing in and near Fifth street. He had been cautioned not to play there. Defendant's street railway on Fifth street consisted of two tracks running east and west in the middle of the street. The south track was used for eastbound cars, the north track for cars going in the opposite direction. Plaintiffs' son, who was a bright boy seven years and seven months old, was playing in the street with a number of other children. He started to run across the street from the sidewalk on the south side and, without looking towards the west, reached the south track and had nearly crossed it when he was struck by an eastbound car and killed. The car was running fourteen to sixteen miles per hour and the motorman did not ring the bell or make any effort to stop before the boy was struck. The motorman was talking to a policeman who was standing in the front vestibule and was not looking ahead. When the child left the curb, the car was fifty to sixty feet away and had the motorman been looking, he could have seen that the boy was unwittingly running into danger, and could have prevented a collision either by checking the speed of the car or by sounding a warning with the bell.
The evidence of defendant contradicts that of plaintiffs on every material issue. It shows that the motorman was looking ahead and had not suffered his attention to be diverted; that a west-bound car had just passed; that the boy came from the north side of the street and suddenly emerging from behind the west-bound car ran in front of the east-bound car and was struck before anything could be done by the motorman to save him; that the bell was rung as the two cars passed and that the speed of the car was from three to five miles per hour.
At the request of plaintiffs, the court gave the following instructions to the jury:
To continue reading
Request your trial