Padgitt v. Moll

• Decision Date: 18 December 1900
• Citation: 159 Mo. 143,60 S.W. 121
• Parties: PADGITT v. MOLL et al.
• Court: Missouri Supreme Court

60 S.W. 121

159 Mo. 143

PADGITT v. MOLL et al.

Supreme Court of Missouri.

December 18, 1900.

CARRIERS—NEWSBOYS JUMPING ON STREET CARS — DEGREE OF CARE — CONTINUANCE— ABSENT WITNESS — AFFIDAVIT OF TESTIMONY —ADJOURNMENT—ADMISSION OF AFFIDAVIT—RECALLING JURY—STENOGRAPHER'S NOTES—READING TO JURY—ERROR—NEGLIGENCE —EVIDENCE—SUFFICIENCY.

1. Where plaintiff, who was a newsboy, and in the habit of jumping on defendant's street cars to sell his papers, was injured by being struck by the tongue of a wagon while selling papers on the footboard of a moving car, an instruction that the servants of defendant were bound to exercise a high degree of care to prevent injuring the plaintiff was properly refused, since he was not entitled to the rights of a passenger, and defendant was bound to exercise only ordinary care to prevent injuring him.

2. Rev. St. 1889, § 2127, provides that if the opposite party will admit what an absent witness would swear to, as set out in an affidavit, the cause shall not be continued, but the party moving therefor shall read such affidavit as evidence of the absent witness. On defendant's application for a continuance, plaintiff admitted the testimony of an absent witness as set forth in defendant's affidavit, and afterwards, the court, for other reasons, continued the case of its own motion for one month and four days. Held, that it was error, after the expiration of the continuance, to allow defendant to read such affidavit to the jury over plaintiff's objection, since plaintiff's admission, under such circumstances, does not stand for all time, but ceases when the emergency ceases.

3. Where the foreman after the retirement of the jury informed the judge that they could not agree as to what the testimony of certain witnesses was, it was error for the court, over the objection of counsel for both parties, to recall the jury and allow the stenographer to read to them his notes of the evidence of such witnesses.

4. Plaintiff, who was a newsboy and in the habit of boarding defendant's cars to sell his papers, jumped on the front end of a moving car, and, after passing along the footboard to the rear, was injured by being struck by the tongue of a wagon standing on the street. The car was moving at a moderate rate, and the motorman was looking forward, and defendant had made ineffectual efforts to prevent newsboys from jumping on its cars. Held, that defendant was not guilty of negligence, and a verdict in its favor was proper.

Valliant and Brace, JJ., dissenting.

In banc. Appeal from St. Louis circuit court; D. D. Fisher, Judge.

Action by B. F. Padgitt, Jr., by his next friend, against Adolph Moll and the Citizens' Railway Company. From a judgment in favor of defendants, and from an order denying a new trial, plaintiff appeals. Affirmed.

The following is the opinion in division No. 1 (VALLIANT, J.):

"Action for damages for personal injuries. Briefly stated, the petition is that plaintiff, a boy ten years old, engaged in selling newspapers, was received on one of the street cars of defendant corporation by its servants in charge thereof, who permitted him to ride on the car for the purpose of selling newspapers, as was their custom to do; that on this occasion plaintiff was on the running board of the grip car, and the defendant's servants in charge caused or suffered plaintiff's body to be struck by the tongue of a wagon, with mules attached, belonging to defendant Moll, whereby plaintiff was thrown off and run over by the trailer car, and his leg so injured as to render it necessary to be amputated, which was done; that the servants of the corporation defendant were negligent in so causing or suffering the plaintiff to be struck by the wagon, and that negligence directly contributed to his injuries; that defendant Moll was negligent in permitting the wagon with the mules attached to stand on the street in such close proximity to the railway track, unfastened and unguarded, as to imperil one riding on the street car as plaintiff was, which negligence combined with that of the servants in charge of the car, as above mentioned, caused the plaintiff to be thrown off and injured as stated. The petition concluded with statements as to his damage and suffering, and prayed judgment for $15,000. Answers were general denials and pleas of contributory negligence, as to which plaintiff joined issue. The testimony on the part of plaintiff tended to show that the accident occurred on Franklin avenue, in the city of St. Louis, along which defendant railway company's track is laid, and that defendant Moll has a grocery store on the south side of Franklin avenue, between Sixth and Seventh streets, in front of which on this occasion a delivery wagon belonging to him was standing, with the rear end towards the curb and in front of the store, and the horses' heads towards the track and close to it, with barely room for the cars to pass, the horses not hitched and not attended; that the plaintiff, a newsboy ten years old, had for some time previous been in the habit of jumping on the cars of defendant corporation as they passed along there, offering his newspapers for sale, and jumping off when he had gone through that car, then boarding the next car that came along, and so on, plying his vocation; that on this occasion the car stopped at the corner of Sixth and Franklin avenue to take on passengers, and then started on again, and the plaintiff jumped on the front end of the grip car, on the running board, in front of the gripman, offered his papers to a passenger on the front seat, and then passed on towards the rear of the grip car, behind the gripman, walking on the running board, offering his papers for sale to the passengers as he came to them, his face to the north, not looking around and not seeing the wagon and horses, and while so doing, and holding to the stanchion, the moving car carried him against the wagon tongue or the horses, and knocked him off the running board, and he fell under the trailer, and the wheels ran over and crushed his leg, and it was amputated in about two hours afterwards; that at the time of the accident the car was moving at a moderate rate, the gripman was at his post looking ahead, and the conductor was on the rear platform. At the close of the plaintiff's evidence the court gave an instruction at the request of defendant Moll that as to him the plaintiff was not entitled to recover, and refused a similar instruction as to the defendant railroad corporation. A nonsuit with leave was taken as to Moll, and the trial progressed as to the other defendant. On the part of the defendant the testimony tended to show that the plaintiff and other newsboys were in the habit of jumping on and off the cars, plying their trade; that the company had often remonstrated and tried to prevent it, but found it impracticable to do so, and had to submit to it; that on this occasion the gripman saw the boy when he got on the car, and saw that he passed towards the rear on the running board, but when the boy passed behind him he saw him no more, as his duty as gripman required his attention to the front; that it was a populous part of the city, wagons, etc., passing, and his custom was to go slowly along there, and he was going slowly on this occasion; that the boy slipped and fell of the running board, and was not struck by the wagon at all. The gripman testified that he told the boy when he got on the car to look out for the wagons in front of Moll's. The boy testified that the gripman said nothing to him.

"The cause was set for trial October 15, 1894, and, when called for trial on that day, defendant moved for a continuance on account of the absence of one William Flippen, and filed the affidavit of Mr. Galt, attorney for defendant, in which it was stated that he had caused a subpœna to be issued for the witness, who was a resident of the city, but had been unable up to that time to obtain service of the writ. The affidavit stated: `But affiant and the defendant believes that said William Flippen is now in said city, and by prosecuting a search therefor his attendance or testimony will be procured at the next term of said court.' Then the affidavit proceeded to set forth what the witness, if present, would testify to, which was, substantially: That he was a passenger on the grip car. Saw the boy jump on the front end of the running board and walk back, calling his papers, and two other newsboys also jumped on. This boy passed to the rear of the gripman, and fell off when he was holding to nothing, and was not struck by the wagon or mules or anything. That the gripman was looking ahead, and the car was going at half speed. That when witness saw the boy fall he hallooed to the gripman, `Stop, a boy fell off,' and the gripman stopped as soon as possible. When the affidavit was filed the plaintiff admitted that if the witness were present he would testify as therein stated, and thereupon the court overruled the defendant's motion for continuance. Then the court, for its own convenience, postponed the trial until November 19th, and on that day the trial was begun. The defendant offered to read in evidence from the affidavit what it stated the witness, if present, would testify to. The plaintiff objected on the ground that there was no showing that the witness was not then within the jurisdiction of the court, the objection was overruled, and the plaintiff excepted.

"The evidence, instructions, and arguments were concluded on November 20th, and the jury retired to consider of their verdict, and were still in such retirement on November 21st, when they sent the following note to the judge:

"`Hon. Judge Fisher: The jury cannot agree as to the facts in the evidence of the gripman; also, the boy's. We ask that we may have a transcript of the evidence of the above-named parties. Yours, truly, W. S. Bartley, Foreman.

"`P. S. Without that, I am satisfied this jury cannot agree. W. S. B.'

"Upon...