Ruschenberg v. Southern Electric R. Co.

• Decision Date: 01 October 1900
• Citation: 161 Mo. 70,61 S.W. 626
• Parties: RUSCHENBERG v. SOUTHERN ELECTRIC R. CO.
• Court: Missouri Supreme Court

61 S.W. 626

161 Mo. 70

RUSCHENBERG v. SOUTHERN ELECTRIC R. CO.

Supreme Court of Missouri, Division No. 2.

October 1, 1900.

STREET RAILROADS — INJURIES TO CHILD — EVIDENCE — STATEMENT BY MOTORMAN — RES GESTÆ — EXPERT TESTIMONY — ORDINANCE OF ST LOUIS — SPECIAL EXCEPTION — SPEED OF CAR — CHARTER — FRANCHISE — INSTRUCTION — JUROR — PREJUDICE — DISQUALIFICATION.

1. A statement made by the motorman of the car by which plaintiff's intestate was killed, after the accident had happened, the car stopped, and the motorman alighted in the street to help extricate deceased's body from the wheels, is not a part of the res gestæ, and hence incompetent.

2. Where an expert was called to testify as to whether or not a street car was being operated in a reasonably skillful manner at the time of an accident, the question, "What means would you employ as a motorman to stop a car in the shortest time and space possible?" was improper.

3. Ordinance St. Louis No. 17,693, § 6, conferring a franchise on the Southern Electric Railroad Company, and authorizing it to run its cars over certain streets at a speed greater than eight miles an hour, is not void because in conflict with Rev. Ord. 1892, § 1275, providing that cars shall not be drawn faster than eight miles an hour, and does not repeal the latter ordinance, since the ordinance of 1892 is general in its nature and application, and the later ordinance is merely a special exception.

4. Under Rev. Ord. St. Louis 1892, subd. 10, fixing eight miles an hour as the maximum speed for street cars, and subdivision 9, requiring street-railroad companies to operate their cars according to the provisions of their charters, a company whose franchise provides that its cars may be run at a speed greater than eight miles an hour is entitled to so run them, since the franchise must be considered a part of the charter.

5. In a suit for damages for the killing of a boy by a street car, an instruction that it was the duty of the deceased to have exercised such a degree of care and prudence in crossing the track, and in looking and listening for the approaching car, as an ordinarily careful and prudent boy, of like age and intelligence, would have exercised under like circumstances, was proper, since whether or not such a boy would look and listen before going on the track was still left a question for the jury.

6. The acceptance of a juror in an injury case, who has testified that he was prejudiced against such suits in general, but knew nothing about this particular suit, and that if the evidence convinced him that the plaintiff had a good cause of action he would give him a verdict, was not reversible error.

Appeal from St. Louis circuit court; Selden P. Spencer, Judge.

Action by Alexander Ruschenberg against the Southern Electric Railroad Company. From a judgment in favor of the defendant, plaintiff appeals. Affirmed.

Young & Altheimer and Wm. H. Reynolds, for appellant. Lubke & Muench, for respondent.

GANTT, J.

Plaintiff's son, aged 6 years and 3 months, while attempting to cross in front of an electric street car, was killed on defendant's track on South Broadway, in the city of St. Louis, May 21, 1897, and this action was brought to recover the statutory penalty of $5,000. There was a verdict and judgment for defendant, and plaintiff appeals.

In his second amended petition, plaintiff charged that the death of the boy was caused by defendant's car going south; that the motorman failed to keep a proper and vigilant lookout, and failed to exercise ordinary care to stop the car in time to avoid running against the boy; that subdivisions 4 and 10 of General Ordinance 1275 of the Revised Ordinances of the City of St. Louis of 1892 were then in force, and that thereby the operators of street cars were required to keep a vigilant watch for all vehicles and persons on foot, especially children, either on the track or moving towards it, and on the first appearance of danger to such persons or vehicles to stop the car in the shortest time and space possible; also that no car should be drawn at a greater speed than eight miles per hour. The petition alleged, further, that defendant company contracted with the city to obey all the ordinances of the city then or thereafter to be enacted; that the car which caused the death of plaintiff's son was at the time moving faster than eight miles per hour; that the motorman did not stop it in time, after seeing the boy, so as to prevent his death; and that the motors and brakes of the car were defective. Defendant's answer was a general denial, and a plea of contributory negligence as to the father, in that he failed to care for the boy properly, and as to the son himself that, without stopping to look or to listen or proceeding with reasonable caution, he came upon the track, and directly in contact with the car, heedlessly and recklessly. Plaintiff's reply was a general denial.

There was no evidence of any defect in the car or its motors or brakes. The evidence shows that plaintiff is the only surviving parent of Frank Ruschenberg, the deceased boy; that the boy was killed by a car going south on the west track of defendant's street railroad; that the boy was about 6 years and 3 months old when he was killed. The boy had never been to school, and was a rather clumsy, and not particularly bright, child. Plaintiff was in the employ of the city fire department, and was required to remain at the engine house all the time, night and day, and the boy was living with an aunt, within one block west of the point where the accident occurred.

On the part of plaintiff, the evidence tended to prove that the boy, accompanied by another boy somewhat taller than he was, came out of a saloon on the east side of Broadway, and started diagonally across the street, northwestwardly, towards Haller's house, on the opposite side of the street; that the two boys went upon defendant's south-bound track at a point about where a neighborhood crossing intersected the southbound track, and had almost crossed the same, when the car struck him, and dragged him about 81 feet before the car was stopped; that no gong or bell was sounded to warn them of the approach of the car; that the car was running at a rate of speed variously estimated at from 12 to 26 miles an hour.

On the part of defendant, the evidence tended to show that north of Itaska street there is a hill, and the conductor shut off the current of electricity, and the car was running down grade without any power on. He saw the boys coming along by the saloon door. They were sauntering along, coming slowly across the street, going slightly southwest. They were looking at the car. When the car was very near to them, one of them started and ran right across in front of the car and the other followed. They were very near to the east rail of the east or the northbound track when they commenced to run in front of the car. The motorman at once applied his brake, and hallooed to them, but they ran ahead, one got across, and the deceased was struck and killed. The motorman testified he was not running faster than eight miles an hour. Mrs. O'Neil, who was a passenger on the car, testified as follows: "Q. Were you in the car going south when this accident occurred? A. Yes, sir. Q. Where did you get on the car? A. It was a green car. I must have got on in the city. I was going out to inspect some factories Q. What is your business? A. Inspecting factories where women and children are employed, under the state labor commissioner. Q What is your occupation now? A. It is the same. Q. Working for the state labor commissioner? A. Yes, sir. Q. You were in the car when the accident occurred in May last? A. Yes, sir. Q. What seat were you occupying? A. The first seat on the left-hand side. Q. What was there between your seat and the front of the car to obstruct the view? A. Nothing. Q. Was the car open? A. Yes, sir. Q. The windows open? A. Yes, sir. Q. Do you remember this gentleman here being the motorman in charge of the car? A. Well, I wouldn't say; he does look like him. I thought he had a bigger mustache than that. Q. You remember the occurrence? A. Yes, sir. Q. Please state where you saw the boys first, and how many of them there were. A. There were two. Q. Where did they come from? A. I didn't notice. They came across the street, and seemed to be playing in the dust. Then they commenced to run diagonally — rather that way — from the car. After they got near the edge of the track, they stopped, and looked up, and we thought — I thought instantly — they were going to get on the track. When I saw them stop, I was sure they had stopped. In the meantime the brakeman had thrown on his brake. The little one looked in a different [defiant] way, and started, but he was caught. Q. Which one looked up? A. The oldest one. Q. What was he carrying? A. A little bucket. Q. Tin bucket? A. Yes, sir. Q. How close were they to the car when the little fellow looked up and ran? A. It didn't seem to be more than ten feet. Q. He got over? A. Yes, sir. Q. What did you see the other one do? A. He started after him. He was two feet behind him. He could not run as fast. He was little, and he got on the track when the car struck him. Q. On which side of the track was he when he was hit? You were going south on the west track? A. Yes, sir. Q. Which rail was he nearest to? A. He was on the right, near to the west, liable to be struck. Q. What did you see the motorman do all this time? A. He was trying to stop the car. Q. What did you observe, if anything, in reference to any gong sounding? A. The gong was sounded, certainly, and the man shouted. Q. Who shouted? A. The motoneer. Q. The distance between the front of the car, when the boy started to run, was how much? A. It could not have been over ten feet; it was close, and the child looked up in our faces. Q. Which one looked up in defiance? A. The older boy. Q. The one that got over? A. Yes, sir; he was...