Potter v. St. Louis & S. F. R. Co.

• Decision Date: 09 March 1909
• Citation: 117 S.W. 593,136 Mo. App. 125
• Parties: POTTER v. ST. LOUIS & S. F. R. CO.
• Court: Missouri Court of Appeals

117 S.W. 593

136 Mo. App. 125

POTTER v. ST. LOUIS & S. F. R. CO.

St. Louis Court of Appeals. Missouri.

March 9, 1909.

1. DEATH (§ 97) — ACTION FOR WRONGFUL DEATH — AMOUNT OF RECOVERY — QUESTION FOR JURY.

Rev. St. 1899, § 2864, as amended by Acts 1905, p. 135 (Ann. St. 1906, p. 1637), fixes the amount of recovery for death from fault or negligence at not less than $2,000, and not exceeding $10,000, "in the discretion of the jury," and the court cannot limit the recovery to $2,000.

2. TRIAL (§ 255)—CONTROL OF JURY'S DISCRETION — NECESSITY OF ASKING FOR INSTRUCTION.

It is incumbent on a defendant desiring to have the discretion of the jury controlled as to the measure of damages to ask for an instruction to that effect.

3. DEATH (§ 14) — ACTION FOR WRONGFUL DEATH—GROUNDS OF ACTION.

It is as much the law since, as before, the amendment of Rev. St. § 2864, by Acts 1905, p. 135 (Ann. St. 1906, p. 1637), fixing recovery for death at not less than $2,000 nor more than $10,000, that recovery cannot be had where the injury was not the result of unskillfulness, negligence, or criminal intent.

4. DEATH (§ 99)—ACTION FOR WRONGFUL DEATH—EXCESSIVENESS OF VERDICT.

A verdict of $3,000 for the death of a common laborer who was the sole support of his wife and three children is not excessive.

5. DEATH (§ 75) — ACTION FOR WRONGFUL DEATH — EVIDENCE SHOWING CRIMINAL CARELESSNESS.

Evidence in an action for wrongful death held to show such negligence as to closely border on criminal carelessness.

6. RAILROADS (§ 401)—ACTION FOR DEATH OF PERSON ON TRACK—INSTRUCTIONS—"ORDINARY CARE."

In an action for the death of a person at a station, the court instructed that, though decedent was negligent, defendant was liable if the train employés saw decedent who was unaware of his peril, and failed to give a proper warning by a signal which decedent would be likely to hear, and, such signal being unheeded, failed to stop the train. The court further instructed that if decedent was struck between the street crossing and the depot at which defendant's trains made regular stops, and the track was so that a pedestrian could have been seen for a long distance with ordinary care and diligence, and was frequently used at such point by pedestrians, and deceased, while walking thereon, became in imminent peril, and the trainmen became aware thereof in time, by ordinary care, to have stopped the train and averted the injury, and they failed to use such care and stop the train, and decedent was struck and killed, the jury must find for plaintiff, though they found that decedent was negligent, and that by ordinary care was meant such as an ordinarily careful and prudent person would exercise under the same or similar circumstances. Held, not to conflict with an instruction that it was decedent's duty to look both ways and listen for the approach of trains, and if at any time before he was injured he could, either by looking or listening, have known of the train's approach in time to get off and avoid the accident, plaintiff was not entitled to recover.

7. RAILROADS (§ 401)—ACTION FOR DEATH OF PERSON ON TRACK—INSTRUCTIONS.

In an action for the death of a person killed by an incoming train as he was walking along the track toward a country station in the usual way of reaching it from a nearby crossing, an instruction which, taken literally, required him to look both ways at once and listen while he was walking along, was erroneous.

8. APPEAL AND ERROR (§ 882)—INVITED ERROR—REQUESTED INSTRUCTION.

A party cannot invite error by requesting an erroneous instruction and then complain of it.

9. EVIDENCE (§ 492)—OPINION EVIDENCE— SPEED OF TRAIN—COMPETENCY OF WITNESS.

If a witness is familiar with trains and accustomed to seeing them run, he need not be an expert to testify to the speed of a train.

10. RAILROADS (§ 397)—ACTION FOR DEATH OF PERSON ON TRACK—ADMISSIBILITY OF EVIDENCE.

In an action for the death of a person killed by a train, the testimony of a passenger, sitting in the rear coach at the time of the accident, that she felt no jar, was competent in determining the truth of the engineer's testimony as to his having applied the air and brought the train to a sudden stop.

11. NEGLIGENCE (§ 83)—CONTRIBUTORY NEGLIGENCE — AS PROXIMATE CAUSE OF INJURY.

Though a person by his own negligence exposes himself to the risk of injury, he may recover if the injury is more immediately caused by defendant's omission to avoid the injury.

12. NEGLIGENCE (§ 83)—RECOVERY NOTWITHSTANDING CONTRIBUTORY NEGLIGENCE.

Plaintiff should recover, notwithstanding his own negligence, if the injury was more immediately caused by defendant's omission, after having such notice of plaintiff's danger as would put a prudent man on his guard, to use ordinary care to avoid the injury, and it is not necessary that defendant should actually know of the danger, but it is sufficient if he has sufficient notice to put a prudent man on the alert.

13. RAILROADS (§ 387)—KILLING PERSON ON TRACK—CONTRIBUTORY NEGLIGENCE—PROXIMATE CAUSE OF INJURY.

If, by ordinary care, an engineer could have seen a person on the track in time to have saved his life by such care, his negligence, and not that of the person killed, is the direct, immediate, proximate cause of the injury, and plaintiff in such case may recover.

Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.

Action by Mattie Potter against the St. Louis & San Francisco Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Action by respondent, plaintiff below, against the defendant railway company, appellant, to recover damages for the death of her husband, which took place at Holland, in Pemiscot county, on the 22d of June, 1905. The petition is in the usual form, charging negligence on the part of the defendant, and claiming $10,000 damages. The answer, after a general denial, sets up contributory negligence, to which a general denial was filed by way of reply. From the evidence in the case it appears that the deceased, Jonathan Potter, was a man about 74 years old, a tall, slender man, walked stoop-shouldered and in rather a tottering manner, often using a cane; had been crippled some years before by an accident, which he met with while employed in a sawmill, and was slightly deaf. His occupation was that of an ordinary laborer in a country town, working on farms and at different jobs, and it was developed by the defendant in the course of the cross-examination of plaintiff that the family consisted of Potter, his wife, and three children, and that he made most of the living for the family by his own labor. On the day of the accident, he had on a red shirt and no coat. The tracks of the defendant's road run through Holland from a northeasterly to a southwesterly direction, Holland being some distance south of Caruthersville, and being a town of some hundred or more inhabitants. The railroad line divides the residence district about equally, it being to the east and west of the road. Potter resided in that part of the town to the east of the road. There is a depot at Holland, the platform of which is about 200 feet long. On the day of the accident the train which occasioned it was coming from the north toward the station, at about 5 o'clock in the afternoon, about on time. It had been raining that day, and the rails were slippery. About 72 feet north of the north end of the station platform, there is a street crossing; at 620 feet north of the end of the station platform is a country road crossing, and 190 feet beyond that is a water tank. The plat used in evidence by defendant places the water tank 820 feet beyond the north end of the station platform. The railroad was in good condition, laid with heavy steel rails rock ballasted, and, while practically straight for a long distance south of the station, to the north it was on a slight curve to the west as the track comes from the north. As is usual, the witnesses differed in their estimate of distances. The defendant put in evidence a plat, drawn to scale. We take the distances as given on the plat, with this difference, that what is called the "street crossing," where Potter entered on the track, is marked "road crossing," and what is referred to as road crossing, meaning the country road, is designated "street line." Assuming the plat is drawn to scale, these distances used by us are correct; only the names of the points given on the plat not corresponding to the testimony, and in designating them we follow the testimony. The track was in plain view from the country road crossing certainly, possibly from the tank, clear to the station. There were no buildings or other obstruction near the railroad on either side of it north of the depot for the distance of about a quarter of a mile. The land on either side of the road is level, and, where the road passes through the town from the street crossing to the platform or depot, it is low and wet, and the trenches or borrow pits along the sides are usually filled with water. The people of the town had, ever since the construction of the road, used the portion between the tracks extending from the street crossing to the depot platform as a footpath in going to and from the depot. Potter had been in the habit, when around town, of going over to the depot and watching the arrival of the trains, and in going to and from the depot had always traveled on the railroad track from this street crossing to the depot platform. The people of the town living on the east side of the railroad used the track in like manner. On the day of the accident, Potter left his house at about the time for the arrival of the southbound train, and going onto the track between the rails, at what we call the "street crossing," 72 feet north of the north end of the depot platform, was walking south on it toward the depot platform. There is evidence to the effect that when he came upon the railroad at the street...