Quirk, By Next Friend v. The St. Louis United Elevator Company

• Citation: 28 S.W. 1080,126 Mo. 279
• Parties: Quirk, by Next Friend, Appellant, v. The St. Louis United Elevator Company
• Decision Date: 09 January 1895
• Court: United States State Supreme Court of Missouri

28 S.W. 1080

126 Mo. 279

Quirk, by Next Friend, Appellant, v. The St. Louis United Elevator Company

Supreme Court of Missouri, Second Division

January 9, 1895

Appeal from St. Louis City Circuit Court. -- Hon. L. B. Valliant Judge.

The following instructions referred to in the opinion were given by the court at the instance and request of the plaintiff and the defendant:

For the plaintiff:

"1. The court instructs the jury, that if you believe from the evidence in this case that on the dates hereinafter mentioned the defendant was engaged in the grain elevator business in the city of St. Louis, and state of Missouri; and if you further believe from the evidence that on the dates hereinafter mentioned Biddle street and the levee, at the points hereinafter mentioned, and at the times hereinafter stated, were open public streets of the city of St. Louis and greatly used as such for travel; and if you further believe from the evidence that on the twenty-first day of June, A. D. 1890, the defendant was operating a railway tracks and cars, in connection with its said business, as aforesaid, over, across and along Biddle street and the levee; and if you further believe from the evidence that on the twenty-first day of June, A D. 1890, Jas. Quirk, Jr., was passing west along Biddle street and the levee, where the said railway tracks and cars do pass over said streets; and if you believe from the evidence that the defendant, through its agents, servants and employees, negligently, carelessly and recklessly, and without any warning or notice to the said Jas. Quirk, caused one of the cars operated by it to be moved, shunted or rolled with great force, one against another, and along a track which it was then operating (if you believe from the evidence it was so operating said track), thereby coming with great force against and upon plaintiff, whereby he was knocked down, run over, and sustained the injuries complained of; and if you further believe from the evidence that at said time the plaintiff was in the exercise of ordinary care, as defined by these instructions, and was not guilty of negligence directly contributing to said injury, then your verdict in this case should be in favor of the plaintiff, and it is your duty to so find.

"2. The court instructs the jury, that if you believe and find from the evidence in this case that on the twenty-first day of June, A. D. 1890, plaintiff, Jas. Quirk, Jr., was a minor aged about twelve years; and if the jury further find from the evidence that on the twenty-first day of June, A. D 1890, said Jas. Quirk, Jr., was run over, crushed and injured by a car on a railway track just south of the elevator building, described in the evidence; and if the jury find from the evidence in this case that the place where said James Quirk, Jr., was run over and sustained the injuries complained of was a public street or highway, of the city of St. Louis; and if the jury further find from the evidence that said car was so caused to run over and injure said Jas. Quirk, by reason of another car or cars being thrown against said car with great force, and thereby knocking and driving said car against said Jas. Quirk, Jr.; and if the jury find from the evidence that said car was so caused to run over said Jas. Quirk, while on said highway or street, through the servants of defendant, St. Louis United Elevator Company, so causing said car to be thrown against or bumped against by another car upon said track; and if the jury further find from the evidence that no notice or warning was given of such movement of said cars, and that said action of the servants of the St. Louis United Elevator Company in throwing said car in said manner was not the exercise of ordinary care under the circumstances; and if the jury further find from the evidence that said act of said defendant's servants in so causing said cars to move along said track caused an injury to plaintiff's leg or thigh, then, if the jury further find that at the time the said Jas. Quirk, Jr., was exercising ordinary care at the time of his injury, and was not guilty of negligence contributing to said injury, he is entitled to recover in this case, and it is your duty to so find.

"3. The court instructs the jury, that if you believe from the evidence that the place where Jas. Quirk, Jr., was run over and sustained the injuries complained of, was a public street or highway of the city of St. Louis, then said Jas. Quirk, Jr., had a right to pass over said street or highway, provided he used ordinary care, as defined in the other instruction in so doing.

"4. The court instructs the jury, that if you find from the evidence that Jas. Quirk, Jr., was proceeding with, and at the time of his injury was exercising, care according to his age and discretion, and such as is usually exercised by boys of his age and discretion, then he was not guilty of the want of ordinary care, and was not guilty of negligence contributing to his injury, within the meaning of that term, as contained in these instructions.

"5. The court instructs the jury, that if they find for the plaintiff, in estimating his damages they should take into consideration not only plaintiff's age, the physical injury inflicted, and the bodily pain and mental anguish endured, but also any and all such permanent personal injury as you may believe from the evidence he has sustained, in direct consequence of the acts herein complained of."

Given for the defendant:

"A. The jury is instructed, that the plaintiff in this case bases his right to recovery against the defendant upon the charge that the defendant, through its servants, negligently carelessly and recklessly caused one of its cars to be moved with great force against another, and along a track projected in the street, without giving any warning or notice to plaintiff of its intention to move its cars upon the track, the true meaning of which is, that the defendant was negligent in the movement of the cars, and in not giving notice thereof.

"This charge the defendant denies, which imports that it not only was not negligent in the movement of its cars, and that it did give notice, but that, if it did not give notice, that its failure to do so was not negligence.

"In addition to denying this charge, as a further ground of defense the defendant charges, that whatever injuries the plaintiff received by reason of a collision with the cars moved by the defendant, is attributable to his own want of care.

"You are instructed that it devolves upon the plaintiff to prove, by the preponderance or weight of evidence, the truth of the charge made by him against the defendant as a ground of recovery.

"So far as the plea of the defendant is concerned, that the plaintiff was himself guilty of want of care, which in part caused his own injuries, the onus of establishing such want of care on the part of the plaintiff rests upon the defendant. This, however, does not necessarily mean that the defendant must introduce independent evidence showing such want of care, but the fact of want of care on the part of plaintiff may be drawn from the plaintiff's evidence as well as the evidence offered on the part of the defendant.

"B. Negligence, as used in the instructions given you in this case, means the doing of something which an ordinarily prudent person would not have done under the same or similar circumstances; or the omission to do something which a person of ordinary prudence would have done under the same or similar circumstances. The mere proof of injury through instrumentalities belonging to, or used by, the defendant, does not establish a liability upon the part of the defendant for the injuries so suffered; and it is not proper for you, in reaching a determination as to whether the defendant was negligent, to inquire whether the accident might have been avoided if the defendant had anticipated its occurrence; but whether, taking the circumstances as they then existed, it was negligent in failing to anticipate and provide against the occurrence, as the testimony shows it did happen.

"So far as the charge of contributory negligence on the part of the plaintiff is concerned, you are instructed, if you find such to be the fact, that rails laid upon the street were themselves a warning that they were to be used for the purpose of moving cars thereon; and in approaching such rails, even though they were in the public street, it was the duty of the plaintiff to anticipate that they might be so used, and to be reasonably upon his guard, if they should be used, to avoid injury therefrom; and if there was no proper guard or instrument or means for giving notice for such intended use, this fact, if the plaintiff might have noted it by ordinary care, was reason for the exercise of greater vigilance upon his part; and if you believe from the evidence that the plaintiff might, by the exercise of ordinary care, have discovered that the cars were approaching him, and might, by ordinary activity and vigilance, have escaped coming in contact with them, then you are instructed that the plaintiff can not recover, however gross may have been the negligence on the part of the defendant in failing to give notice of the movement of such cars.

"The law did not require of the defendant the use of every possible precaution to avoid injury to individuals in the movement of its cars upon the track, nor of any particular means which it may appear, after the accident happened, would have avoided it.

"The requirement of the defendant is only to use such reasonable precaution to prevent accident to others, who at the time were themselves using ordinary care, as would have been adopted by prudent persons prior to the accident.

"Its duty, as well as the duty of the plaintiff,...