Schmitt v. Missouri Pac. Ry. Co.

• Decision Date: 12 February 1901
• Citation: 160 Mo. 43,60 S.W. 1043
• Parties: SCHMITT et ux. v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

60 S.W. 1043

160 Mo. 43

SCHMITT et ux. v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri, Division No. 2.

February 12, 1901.

RAILROADS — INJURIES TO PERSON ON TRACK — NEW TRIAL — NEWLY-DISCOVERED EVIDENCE — DISCRETION OF TRIAL COURT — INSTRUCTIONS — CONFLICT — CONTRIBUTORY NEGLIGENCE — VIOLATION OF CITY ORDINANCE — PRIMA FACIE NEGLIGENCE.

1. Whether a new trial shall be granted for newly-discovered evidence is a question of discretion for the trial court, and, in the absence of an abuse of that discretion, the appellate court will not interfere.

2. The plaintiff's son, aged 10 years, while walking on defendant's track, was run over and killed by a train approaching from behind. Plaintiff, in support of a motion for a new trial for newly-discovered evidence, offered an affidavit stating that the affiant was standing 16 feet from the north side of a freight train which was passing on a track parallel with that on which deceased was walking, and that without stooping down he saw the boy, who was 12½ feet on the south side of the train. The affiant was a near neighbor of the plaintiff, but had never mentioned the fact that he saw the deceased on the track at the time of the accident until he heard plaintiff, after the trial, telling that he had lost his case because he could not prove where the boy was from the time he left home until immediately before the accident. Held, that the facts stated in the affidavit were not sufficiently credible to warrant the granting of a new trial.

3. Plaintiff's son, aged 10 years, who had always lived near the defendant's railway track, and was aware of the danger of being on the same, was killed, while walking along the track, by a train approaching from behind. On the trial the jury were instructed in behalf of the plaintiff that it was the duty of the deceased to exercise that degree of care and prudence that an ordinarily careful and prudent person of his age and intelligence, under like circumstances, would have exercised. For the defendant the court instructed that if the deceased saw, or by looking and listening could have seen and heard, the engine approaching, then the plaintiff could not recover. Held, that these instructions were not conflicting.

4. Plaintiff's son, aged 10 years, who had always lived within a block of the defendant's railway tracks, was killed, while walking on defendant's track within the city of St. Louis, by a train approaching from behind. The boy was bright and intelligent for his age, and had been frequently warned of the danger of going on the railway tracks. A St. Louis ordinance required the bell on an engine to be rung constantly while the engine was moving, which was not done in this case. At the place of the accident the track was clear, so that an approaching train could have been seen 500 feet away. The deceased did not stop to look and listen before walking on the tracks. Held that, though the defendant was negligent in failing to ring the engine bell, the negligence of the deceased contributed to the injury, and hence a recovery was precluded.

Appeal from St. Louis circuit court; Jacob Klein, Judge.

Action by Frank X. Schmitt and wife against the Missouri Pacific Railway Company. From a judgment in favor of the defendant, the plaintiffs appeal. Affirmed.

Taylor R. Young, Maurice L. Altheimer, and Wm. H. Reynolds, for appellants. Martin L. Clardy and Henry G. Herbel, for respondent.

BURGESS, J.

This is an action by plaintiffs, father and mother of Albert B. C. Schmitt, deceased, to recover of defendant company $5,000 damages for the death of their son, who was at that time aged 10 years and 1 month, by reason of the alleged negligence of defendant in failing to discover the boy on its track in time to have avoided the injury; the failure to ring the bell upon the engine, as required by the ordinance of the city of St. Louis, where the accident occurred; and by reason of having defective brakes on its train. No proof was offered upon the last ground of negligence alleged with respect to defective brakes, and it was therefore eliminated from the case. Upon a trial before the court and a jury, there was a verdict for defendant. In due time plaintiffs filed their motion for a new trial, on the ground of newly-discovered evidence, and the giving of erroneous instructions at the instance of defendant, which being overruled, they bring the case to this court by appeal for review.

The facts are substantially as follows: Between 3 and 4 o'clock in the afternoon of August 6, 1897, plaintiffs' son, who was then 10 years and 1 month old, while walking along upon defendant's southernmost or east bound of three parallel tracks in the city of St. Louis, was struck, run over, and instantly killed by one of defendant's passenger trains, which passed that point daily at about that hour. The accident occurred about midway between Tower Grove avenue and King's highway, on defendant's private way, where there was no street crossing said tracks, and where a person standing on the east-bound track, at the point where the boy was killed, could see a dog crossing the track at King's highway, which was about 1,500 feet distant. Of the three tracks at this point, two are what are called main tracks, and the other a switch track. The one upon which the boy was killed is used for east-bound trains, the middle track for west-bound, and the north-most for a switch track. The defendant had erected signboards at Tower Grove avenue, warning everybody not to trespass on the tracks. Race Course avenue adjoins defendant's right of way on the north, and parallels the tracks. The boy lived a block north of the point at which he was killed, had lived there for 10 years prior to his death, had on several occasions been forbidden by his father from walking and playing on the railroad tracks, and cautioned by him of the danger in so doing, and had been punished by him, on the morning of his death, for loitering about said tracks. Deceased was a bright boy of his age, and had been attending school for about four years. At the time of the accident the Hill-O'Meara Construction Company was constructing a sewer on the south side of defendant's right of way, parallel with defendant's tracks, the northern line of which was about 15 feet south of defendant's southernmost or east-bound track, the intervening space being occupied by the earth thrown out of the trench, which formed a ridge from 6 to 10 feet high, that extended along the south side of the track on which the boy was killed 100 feet or more. At the western end of the ridge a portable engine, inclosed with boards (referred to in the evidence as the "Engine House") was situated. Shortly before the accident the boy was seen about a team hitched to a wagon, from which was being unloaded material for the sewer, a little southwest of the engine house. He was called by the engineer of the Hill-O'Meara Construction Company, who was standing at a water barrel on the south side of the engine house ringing a tin bucket, and upon going to him was seen to take the bucket, and start around the west side of the engine house, towards defendant's track, which was only a few feet distant, on a path leading thereto. Shortly after he disappeared behind the engine house a passenger train, consisting of an engine and two cars, came along, and as there was a west-bound freight train passing that point on the track next north of the track on which the boy was killed, the usual passing signal (two short blasts of the whistle) were given by the passenger train a short distance west of the engine house. Just an instant before the boy was struck he was seen walking along east, about the center of the southern or eastbound track, by Edward Joyce, another boy, who was standing about 80 feet north of the tracks, with his dogs, awaiting the passage of the freight train on the west-bound track. As the freight train going west was between him and the boy, who was walking east on the next track south, he could only see about one-half of the boy's body by looking through under the freight cars. He only took two steps from the time Joyce first saw him until he was struck and killed by the east-bound passenger train, which did not stop, but went on. The Joyce boy gave the alarm, and ran to the boy, who was identified as plaintiff's son. There was evidence that the engine bell was not ringing at the time of the accident, but the evidence conclusively showed that the view of the track westwardly was unobstructed for at least 500 feet. The boy's father testified that a dog could be seen crossing King's highway from the point of the accident a distance of 1,500 feet. The defendant offered no evidence.

In behalf of plaintiffs the court instructed the jury as follows: "(1) The court instructs the jury that it was the duty of the defendant's servants in charge of said eastbound engine and train of cars, while running or moving within the limits of the city of St. Louis, to cause the bell on the engine thereof to be constantly sounded; and, if you believe from the evidence that the bell on the engine of the train in question was not constantly sounded while said train was running or moving within said limits, then you should find that the defendant was guilty of negligence in that respect. (2) The court instructs the jury that it was the duty of the defendant's servants, in the running and handling of said east-bound engine and train of cars, to have exercised that degree of care and prudence which an ordinarily careful and prudent person, engaged in like business, would have exercised under like circumstances, and a failure to exercise such a degree of care and prudence would render the defendant guilty of negligence in that respect. (3) And, on the other hand, it was the duty of Albert B. C. Schmitt, in attempting to...