Ostertag v. Pacific R.R. Co.

• Decision Date: 30 April 1877
• Citation: 64 Mo. 421
• Parties: DOROTHEA OSTERTAG, Appellant, v. THE PACIFIC RAILROAD COMPANY, Respondent.
• Court: Missouri Supreme Court

64 Mo. 421

DOROTHEA OSTERTAG, Appellant,

v.THE PACIFIC RAILROAD COMPANY, Respondent.

Supreme Court of Missouri.

April Term, 1877.

Appeal from St. Louis Circuit Court.

Leverett Bell, with Jos. T. Tatum & Wm. H. Horner, for Appellant, cited: Norton vs. Ittner, 56 Mo. 351; Turner vs. Loler, 34 Mo. 461; Kinman vs. Cannefax, 34 Mo. 147; Meyer vs. Pac. R. R., 40 Mo. 151; First Nat. Bank of Warsaw vs. Currie, 44 Mo. 91; S. C., 45 Mo. 157; Wyatt vs. Citizen's R. R. Co., 55 Mo. 490; R. R. Co. vs. Stout, 17 Wall. 657; Conroy vs. Vulcan Iron Works, 62 Mo. 35.)

J. N. Litton, for Respondent, cited: Devitt vs. Pac. R. R., 50 Mo. 302; Barton vs. I. M. R. R., 52 Mo. 258; Evans vs. A. & P. R. R. Co., 62 Mo. 59; Smith vs. Union R. R., 61 Mo. 591; Owens vs. Han. & St. Joe. R. R. Co., 58 Mo. 393; Stoneman vs. A. & P. R. R., 58 Mo. 503; Karle vs. K. C. & St. Jo. R. R., 55 Mo. 483; Norton vs. Ittner, 56 Mo. 351.

NAPTON, Judge, delivered the opinion of the court.

This was an action to recover the damages under the statute for the death of plaintiff's son, alleged to have been occasioned by the negligence of defendant's employees.

The facts, as developed on the trial, appeared to be substantially these. The son of plaintiff, about eleven years old, was, like other boys of his age, in the habit of gathering the remains of wheat found in or under the cars at the railroad depot, and about the wagons employed in hauling the wheat, and, upon the occasion of his death, took his seat upon the tressle work on which the loaded and empty cars were propelled, which was five or six feet above the ground, and upon a sudden jerk of the cars was killed, or so injured that he died the next day.

There was some difference of opinion, among the witnesses, as to whether at the time young Ostertag went under the car there was a locomotive attached to the train or not, or whether if there was he could see it. The engine had a patent bell-ringer, but this bell did not ring until a revolution of the wheel, and no bell was sounded before starting. But it seems conceded, that young Ostertag was crippled by the first revolution of the wheel. The car under which he was sitting was, perhaps, the third one in the train from Seventh Street, and the train consisted of twelve or thirteen cars, the elevation of the tressle gradually declining to the ground till it was level with it at the west end of the train, where the locomotive was attached. Whether the locomotive was attached when the boy went under the car, or subsequently, is left in doubt by the testimony, and it is not clear whether he could have seen it from his position or not. It is clear that the conductor who walked over the tops of the cars could not see a boy sitting under one of them. There was a good deal of evidence tending to establish the fact that boys were in the habit of gathering wheat left in the cars, or dropping from the wagons, and that the officers of the company prohibited it and directed their expulsion, but of course without effect.

The verdict was for the defendant, and the only ground upon which the judgment which followed it is assailed here, is, that the instructions were wrong. It is unnecessary therefore to set out the evidence in detail.

The court gave five instructions for the plaintiff and three for the defendant. These instructions were as follows:

No. 1. “The jury are instructed that although they may believe, from the evidence, that the son of plaintiffs was guilty of negligence or carelessness, which contributed to the injury, yet if they further believe, from the evidence, that the servants or agents of the defendant, managing the locomotive or cars of defendant, with which the injury was inflicted, might have avoided the said injury by the use of ordinary care and caution, the jury will find for plaintiffs.”

No. 2. “The court instructs the jury that persons or corporations using dangerous machinery, or employing vehicles which are hazardous, and who know, or have good reason to know, that boys or other persons, having but limited capacity or discretion, are in close proximity to or near by said machinery or vehicles, the persons or corporations using them are bound to exercise a degree of caution and skill which would not otherwise be required; and if the jury believe, from the evidence, that the agents or employees of defendant, in charge of the locomotive or cars of defendant, knew, or had reason to know, that the son of plaintiffs was about or near to the same, the jury may consider this fact in determining the question of defendant's negligence.”

No. 3. “The court instructs the jury that defendant is required to exercise the utmost care and greatest prudence in the operation of its engines and machinery, on account of the danger attending the use of the same; and if the jury believe from the evidence in this action, that the defendant's agents or servants whilst managing the locomotive or cars of defendant, as such agents or servants, failed to use such care and prudence, by which the injury was done to the son of plaintiffs, they should find for plaintiffs in this action.”

No. 4. “The court instructs the jury that if they find for the plaintiffs they must assess their damages at the sum of five thousand dollars, that being the amount to which plaintiffs are entitled by law, if the jury find a verdict for plaintiffs.”

No. 5. “The jury are instructed that the son of plaintiffs was bound to exercise only such care and prudence as might reasonably...