Simon v. Metropolitan St. Ry. Co.

• Decision Date: 06 July 1915
• Docket Number: No. 17334.,17334.
• Parties: SIMON et ux. v. METROPOLITAN ST. RY. CO.
• Court: Missouri Supreme Court

178 S.W. 449

SIMON et ux. v. METROPOLITAN ST. RY. CO.

No. 17334.

Supreme Court of Missouri, Division No. 2.

July 6, 1915.

Appeal from Circuit Court, Jackson County; James E. Goodrich, Judge.

Action by Abraham Simon and wife against the Metropolitan Street Railway Company. From an order granting plaintiffs a new trial, defendant appeals. Affirmed.

This is a suit by the parents of Sarah Simon to recover $10,000 for her death. There was a verdict for defendant, which was, on motion for a new trial, set aside and a new trial ordered. Defendant has appealed.

This is a second appeal in the case. The opinion on the former appeal is reported in 231 Mo. at page 65, 132 S. W. 250, 140 Am. St. Rep. 498. That appeal was from an order setting aside the verdict and granting a new trial. The facts were fully stated in connection with the opinion on the former appeal, and, for that reason, we will make this statement very brief.

Sarah Simon, the deceased, was four years and three months old. She and her two little sisters were visiting at 117 Third street, which was directly south across the street from her home in Kansas City. It was between Walnut street and Grand avenue. The entrance to the building at that number was about to feet east of the alley. The child attempted to run across the street. She ran in between the fender and the bumper. She was knocked down. One of her legs was across the rail, and the car wheel ran against it, shoving her four or five feet along the track, injuring her so that she died about 10 o'clock that night.

The motorman had a clear view of the street from the time he turned into Third street at Walnut, a distance of about 170 feet from where the injury occurred. There was a distance of about 17 feet between the south curb of Third street and the south rail of the car track at that point.

There was a sharp conflict in the evidence on two points: First, as to where the car was when the child started to run across the street. Some of the defendant's testimony tended to prove that the car was directly in front of the child when she started across. The car was going about five or six miles an hour. The evidence for plaintiff tended strongly to prove that the car was at or near the alley, which was to feet west of the child, when she started across. Some of the evidence for defendant tended to prove the same thing. Second. There was evidence on both sides tending to prove that the child started across the street when the car was at or about the alley, that she stopped about half way to the rail, and then ran on until she was struck. Some of defendant's witnesses testified that she did not stop after starting across the street until she was struck. Several of defendant's witnesses testified that while crossing the child "hesitated a moment" when about halfway to the car track. The motorman testified that he did not see her until she was about five or six feet from the car and about even with the space between the fender and the bumper. There was a conflict in the evidence as to whether the bell was rung, and as to whether the motorman was observing the street ahead of him for persons on or crossing the street.

The following instruction was given for the defendant on both trials:

"(5) The court instructs the jury that an accident may happen, and a person be injured or killed therein, which is not caused by the negligence of any person connected therewith; and, if the jury believe from the evidence in this case that the death of the child Sarah Simon was the result of such mere accident or misadventure, then the plaintiffs cannot recover in this case, and your verdict must be for the defendant company."

The new trial was granted after the first trial on account of the giving of an instruction other than the one set out. On the former appeal the action of the trial court in setting aside the verdict and granting a new trial was affirmed without any discussion of the propriety of giving said instruction No. 5.

John E. Lucas and Charles A. Stratton, both of Kansas City, for appellant. Daniel O'Byrne and Block & block, all of Kansas City, for respondents.

ROY, C. (after stating the facts as above).

I. The verdict was properly set aside and a new trial granted on account of the error in giving instruction No. 5 for the defendant.

In Henry v. Grand Ave. Ry. Co., 113 Mo. 525, 21 S. W. 214, the defendant was operating a cable railroad and maintained an opening in the street covered with a trapdoor. As the plaintiff in that case was crossing the street, an employé of defendant was engaged with a crowbar in opening the trap door. Plaintiff was tripped and fell, receiving an injury. It was a controverted point at the trial as to whether she was negligently tripped by the man with the crowbar, or was tripped in some way unknown and not by the company's employé. The following instruction was given for defendant:

"If the jury believe from the evidence that the injuries sustained by the plaintiff were merely the result of accident, then your verdict will be for defendant."

It was approved. It was there said that an accident "proceeds from an unknown cause," and it was held that the word "merely" implied "that there must not have been any negligence or carelessness on the past of the employé of the defendant contributing to the injury."

We call attention to the fact that in the above case the injury was attributable to one of two distinct causes: The act of defendant's employé, or an unknown cause not connected with the act of such employé. If plaintiff was negligently tripped by the employé, it was not an accident. If she was tripped by some means not known, it was an accident. That state of facts was what justified the giving of such instruction.

In Feary v. Met. Str. Ry. Co., 162 Mo. 78, 62 S. W. 452, the plaintiff was Injured by...