Scamell v. St. Louis Transit Co.

• Decision Date: 15 December 1903
• Citation: 77 S.W. 1021,103 Mo.App. 504
• Parties: SCAMELL, Respondent, v. ST. LOUIS TRANSIT COMPANY, Appellant
• Court: Missouri Court of Appeals

77 S.W. 1021

103 Mo.App. 504

SCAMELL, Respondent, v. ST. LOUIS TRANSIT COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

December 15, 1903

Appeal from St. Louis City Circuit Court.--Hon. S. P. Spencer Judge.

AFFIRMED.

STATEMENT.

In view of the errors assigned, the petition herein is exhibited intact, thus:

"The plaintiff states that she is the mother of Harry Scamell, who is a minor of the age of -- years, and that the father of said Harry Scamell was dead at the times herein stated. That the defendant is, and at the times herein stated, was, a corporation by virtue of the laws of Missouri, and used and operated the railway and cars herein mentioned as carriers of passengers for hire, as a street railway company.

"That on the ninth day of October, 1901, the defendant, by its servants in charge of its south-bound car on Jefferson avenue, received the plaintiff's said son as a passenger thereon, and for a valuable consideration paid by said son to the defendant, the defendant undertook and agreed with him to carry him in safety as such passenger on said car to his destination as a passenger on said line, to-wit: Laclede and Jefferson avenues, and to there stop said car and allow him a reasonable time and opportunity to alight in safety from said car. Yet the plaintiff avers that the defendant unmindful of its undertaking, and of its duties in the premises, did fail and neglect to stop said car at said point of his destination a reasonable time to allow him to alight in safety from said car; but, on the contrary, whilst said car was stopped at said point, to enable passengers to alight therefrom, and whilst her son was in the act of alighting from said car whilst so stopped, and before he had a reasonable time or opportunity to do so, did negligently cause and suffer said car to start forward, and to move, whereby plaintiff's son was caused to be thrown and to fall from said car, and be struck by a north-bound car, and to be seriously and permanently injured upon his legs, back, spine, arms, and wrist, dislocating his right wrist, tearing the ligament from the bones of his wrist, and causing him internal injuries.

"And plaintiff avers that defendant and its servants in charge of its said north-bound car were further negligent in running said car rapidly to and past said south-bound car, whilst it was stopped and discharging passengers therefrom, and looking out for persons and passengers alighting from said car, and slowing up and stopping said car, to avoid injuring them, and in failing to give signal of the approach of said car, which negligence directly contributed to cause said injuries to plaintiff's said son.

"That by said injuries to her son, plaintiff has lost, and will lose, his services, and the earnings of his labor, until he shall arrive at the age of twenty-one years, and has incurred and will incur large expenses for medicines, medical and surgical attention and nursing, and caring for her said son to her damage in the sum of five thousand dollars, for which she prays judgment."

The defendant pleaded a general denial, and a special defense of contributory negligence in that the plaintiff's son negligently and carelessly jumped from a moving south-bound car, after it had left the usual stopping place for passengers to alight, and from the side of the car next to another track on which a north-bound car was moving, and came in contact with such car, and that he jumped from the south-bound car without looking or listening to see or hear whether a car was coming upon the north-bound track, when by looking and listening he might have seen and heard such north-bound car and avoided collision therewith.

The facts in evidence, somewhat abridged, are that plaintiff, a widow, accompanied by her son, who was then nineteen years and three months old, living with his mother, were on a south-bound car on Jefferson avenue at about half past eight o'clock p. m., October 9, 1901; the car was an open car with seats extending across, and running boards to facilitate passengers in getting off on either side. Plaintiff and her son were towards the rear portion of the car, the plaintiff seated at the end of a seat with the east running board next to her and her son seated next to her on the other side. She signalled as the car drew near Laclede avenue, but it ran by the corner before stopping; she then got off in safety and walked westwardly, although the conductor rang for the car to start as she had one foot on the ground, and the other on the running board. The son had risen to his feet, and was standing in the body of the car preparatory to getting off when the conductor signalled the motorman to go on; the car moved with a jerk and threw him upon the eastern track, but erect and upon his feet, where he was immediately struck by a car from the opposite direction and suffered grave injuries. The testimony of plaintiff and her son was fully supported by the statements of passengers on both cars; some of whom also testified that no signal was given by the north-bound car. On behalf of defendant, the evidence of its servants and other witnesses tended to show contributory negligence on part of the young man, and that he had stepped or jumped off the car, some deposing that the car was in motion at the time.

Judgment affirmed.

Boyle, Priest & Lehmann, Jones, Jones & Hocker, and Geo. W. Easley for appellant.

(1) The petition fails to state a cause of action, in that it fails to aver that plaintiff's son was her servant, and also fails to allege her special damages. Dunn v. Railroad, 21 Mo.App. 202; Schwartz v. Railway, 46 Mo.App. 380; Matthews v. Railway, 26 Mo.App. 84. (2) The court erred in refusing to sustain the demurrer to the evidence, for the following reasons: (a) No causal connection was shown by the evidence between the jerk which plaintiff and her witnesses claimed caused plaintiff's son to fall from the car and the injury which he sustained. The negligence charged must be the proximate and direct cause of injury. Killian v. Railway, 86 Mo.App. 447; Love v. Mfg. Co., 160 Mo. 626; Bassett v. St. Joe, 53 Mo. 290; Hicks v. Railway, 46 Mo.App. 304; Brown v. Railway, 20 Mo.App. 222; Mathewson v. Mayer, 90 Mo. 585; Clark v. Fairlay, 24 Mo.App. 429; Hudson v. Railway, 32 Mo.App. 668; Stanley v. Railway, 114 Mo. 606; Waller v. Railway, 59 Mo.App. 416; Reed v. Railway, 50 Mo.App. 504; Barklay v. Railway, 96 Mo. 367. (b) Under the evidence the plaintiff was guilty of contributory negligence in attempting to alight from defendant's car in front of a car moving in the opposite direction, without looking or listening for the approach of said car. Weber v. Railway, 100 Mo. l. c. 204; Kelsay v. Railway, 129 Mo. 362; Jones v. Barnard, 63 Mo.App. 501; Moberly v. Railway, 98 Mo. 183; Sonnenfeld v. Railway, 59 Mo.App. 668; Smith v. Railway, 52 Mo.App. 36; Bindbental v. Railway, 43 Mo.App. 463; Hickman v. Railway, 47 Mo.App. 65. (c) The injury being stated as arising out of a violation of a contract with the son, gives no right of action to the plaintiff, who was not a party to the contract. Railroad v. Stuttler, 54 Pa. St. 375; Brink v. Railroad, 160 Mo. 67; Roddy v. Railroad, 104 Mo. 245; Heizer v. Mfg. Co., 110 Mo. 611. (3) The verdict of the jury is excessive in amount. In a case of this character, the damages are easily ascertainable, and the finding of the jury is in excess of the amount which plaintiff lost by reason of her son's injuries, taking the testimony of plaintiff with respect to the amount of loss as true. (4) The court erred in excluding the evidence offered by defendant as to the amount of his earnings the plaintiff's son appropriated for his pleasures, and used for his maintenance. Sherlock v. Kimmell, 75 Mo. 77; Dunn v. Railway, 21 Mo.App. 206; Schmitz v. Railway, 46 Mo.App. 396; Matthews v. Railway, 26 Mo.App. 84.

REYBURN, J. Bland, P. J., and Goode, J., concur.

OPINION

REYBURN, J. (after stating the facts as above).

1. The imperative instruction asked by defendant at the close of the testimony was not justified on either ground urged, and was properly rejected. The evidence was in conflict, but the testimony offered by plaintiff, if given credence by the jury, warranted and supported the conclusion that, without fault on his part, defendant had been remiss in its duty, as a common carrier of passengers, towards the plaintiff, and the casualty thereby occasioned; the proof introduced in defense of the action tended to establish the charge of the defendant in its answer, that plaintiff's son himself had been guilty of contributory negligence in jumping from the car while in motion, after it had left the usual point for passengers to alight, and in so getting off such south-bound car without looking or listening for the approaching north-bound car, when by so looking and listening, he might have seen and heard such car and avoided collision therewith. In the state of the opposing testimony thus exhibited, where the facts in evidence admitted of different construction and inference, the question, whether negligence was imputable to the injured party or to the defendant, was correctly committed to the jury.

2. The general rule of law dominant in this State, is that, prima facie, the services of the minor children belong to the father during his lifetime, and upon his deceased to the mother, if she be surviving, upon whom the burden of their maintenance during minority is imposed. The widow, upon the death of her husband, succeeds to his obligation and duty towards their minor children; she becomes in his place and as his successor, the head of the family and upon her devolves the shelter, clothing and education of the minor children, and in turn she acquires the reciprocal right to their services...