Simon v. Metropolitan St. Ry. Co.

• Decision Date: 29 November 1910
• Citation: 231 Mo. 65,132 S.W. 250
• Parties: SIMON et al. v. METROPOLITAN ST. RY. CO.
• Court: Missouri Supreme Court

132 S.W. 250

231 Mo. 65

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

Supreme Court of Missouri, Division No. 2.

November 29, 1910.

1. STREET RAILROADS (§ 95)—INJURIES—NEGLIGENCE —INJURIES TO A CHILD.

That the motorman sees a child four years of age approaching the street car track from the sidewalk ahead of the car is in itself sufficient to require him to stop the car to prevent injury.

2. STREET RAILROADS (§ 114)—INJURIES—ACTION —SUFFICIENCY OF EVIDENCE.

In an action for the death of a four year old child by being struck by defendant's street car, evidence held to show that the child made only a momentary stop in the street before going on the track or merely hesitated from childish indecision.

3. STREET RAILROADS (§ 95)—INJURIES—NEGLIGENCE —FAILURE TO STOP CAR.

That a four year old child after leaving the curb merely hesitated for a brief time in the street from childish indecision before advancing onto the track did not give the motorman the right to proceed under the idea that the child did not intend to go onto the track.

4. STREET RAILROADS (§ 95)—INJURIES—NEGLIGENCE.

The distance from the street car track at which young children are placed in a perilous position so as to require the motorman of an approaching car to stop is greater than in the case of adults.

5. TRIAL (§ 191)—INSTRUCTION—ASSUMPTION OF FACT.

An instruction in an action against a street railway company for an infant's death that if the motorman saw the child leave the sidewalk and come into the street, and stop before going to the track, he could proceed, etc., was erroneous for assuming that there was evidence that the motorman saw the child leave the sidewalk and stop; the evidence showing that he did not do so.

6. STREET RAILROADS (§ 118)—INJURIES TO CHILD—ACTION—INSTRUCTIONS.

An instruction, in an action against a street car company for death of a four year old child on the track, that if the motorman after seeing the child start towards the track, after making its last stop in the street, used ordinary care to stop the car, he was not negligent, was erroneous in making the motorman's exercise of ordinary care to stop after seeing the child start after making its "last stop" in the street the full measure of his duty, where there was evidence that he was negligent in not seeing the child until just before striking it, and in not ringing the bell or observing the efforts of bystanders to warn him of the child's peril, and was also erroneous for only requiring the motorman to stop after seeing the child start towards the track after making "its last stop," the evidence showing that it first stopped at the edge of the curb, and then momentarily hesitated in the street before finally toddling towards the tracks.

7. STREET RAILROADS (§ 117)—INJURY ACTIONS —JURY QUESTION—NEGLIGENCE.

In an action against a street car company for the death of a four year old child on the track, evidence held to make defendant's negligence a question for the jury.

8. APPEAL AND ERROR (§ 987)—FINDINGS— CONCLUSIVENESS—WEIGHT OF EVIDENCE.

It is not the province of the Supreme Court to pass upon the weight of the evidence.

9. NEGLIGENCE (§ 134)—IMPUTED NEGLIGENCE —CARE OF PARENTS.

In an action against a street car company for the death of plaintiff's child upon the track, evidence held not to show that plaintiff was negligent in permitting the child to go upon the street.

Appeal from Circuit Court, Jackson County; H. L. McCune, Judge.

Action by Abraham Simon and another against the Metropolitan Street Railway Company. From an order granting a new trial, after verdict for defendant, it appeals. Affirmed.

Jno. H. Lucas and Chas. N. Sadler, for appellant. Leon Block and Daniel O'Byrne, for respondents.

GANTT, C. J.

This is an appeal from an order of the circuit court of Jackson county granting the plaintiffs a new trial. The action was for $10,000, brought by the plaintiffs for the death of their minor daughter. The trial resulted in a verdict for the defendant, and the court set aside the verdict and granted plaintiffs a new trial on the ground that the court erred in giving instruction "No. 3 A" on behalf of the defendant.

The petition stated that the plaintiffs were husband and wife, and, respectively, the father and mother of Sarah Simon, who was at all times a minor and unmarried; that the defendant was at all times mentioned a corporation operating an electric car line over and upon the streets of Kansas City, among other streets an electric car line and electric cars over and upon Third street, between Walnut and Grand avenue; that on or about July 11, 1905, about 5 o'clock in the afternoon on said Third street, and about 60 feet west of Grand avenue, Sarah Simon, the minor child of plaintiffs, while attempting to cross said Third street from the south side thereof to the north side thereof, the said Third street running east and west, was run into, her left leg fractured, and she was terribly injured otherwise by an electric car which was then and there run, conducted, and managed by the employés of the defendant, and as a result of said injuries said Sarah Simon died within 10 hours thereafter; that the said Sarah was thus run into and injured by said car through the negligence and unskillfulness of the servants and employés of the defendant whilst running and managing said electric car, in this: First, the motorman running said car and in charge thereof negligently failed to sound any bell or give any other warning of the approach thereof; second, the said motorman failed to stop the said car within a reasonable time after he saw the dangerous situation of the said Sarah; third, that the said motorman negligently failed to stop the said car within a reasonable time after he might have seen the dangerous situation of the said Sarah; and, fourth, that the agents, servants, and employés of said defendant negligently failed to attach a good and sufficient fender to the front end of said car, which in the exercise of ordinary care they should have done. The answer was a general denial and a plea of contributory negligence on the part of the said Sarah Simon and the plaintiffs directly contributing to the injury of the said Sarah.

The evidence tended to show that on July 11, 1905, the plaintiffs resided on the north side of Third street just east of the alley between Walnut street and Grand avenue of Kansas City. They were the parents of several minor children, and among them the deceased child, Sarah, age four years and three months. The father conducted a clothes pressing shop at said place, and his family lived in the rear of it. Third street runs east and west. Almost directly across the street from the plaintiffs' business place and home Mrs. Barman, with her husband conducted a millinery establishment. In the afternoon of the 11th day of July, 1905, Mrs. Barman, who testified she was a childless woman, went over to the plaintiffs' residence, and, on the parents' consent, took their three minor children across the street to her business place. They played around her establishment inside of the house and store. She had the youngest child on her knee, and did not notice that Sarah had gone outside until she heard shouts and cries in the street about 5 o'clock that afternoon. She went out and found that Sarah, the deceased child, had been struck and run over by an electric car. There was no one on the car except the motorman and the conductor. She testified that the child was never permitted to cross the street unaccompanied.

George Chapman testified that he was walking along Third street, proceeding east along between Walnut street and Grand avenue, on the south side of the street, and passed the little girl Sarah about the time she was leaving the curb to cross the street; that at the time the child first started in the street the car was at the Walnut street curve; that he stopped four or five feet after he passed her, and leaned against the iron post, one of the posts that supports the electric line of the defendant; that he saw the child standing four or five feet from the curb of the street; that the child started again, and, when she did so, the car was about to the vacant lot west of the alley. He saw she was in danger. There was no object between the child and the street car. The witness heard no bell and the car's speed was about five or six miles an hour. The child toddled; did not run. She was dragged six or seven feet after she was struck.

A colored policeman took the child from under the car.

Edwin J. Shannahan testified that he had made measurements for the plaintiffs, and that it was 17 feet 4 inches from the south curb to the rail of the alley; that it was 61 feet 7 inches from the alley to Grand avenue, and 29 feet and 1 inch east of the east line of the alley to the east line of the door in Barman's place; that the vacant lot alluded to by Chapman in his testimony was over 40 feet west of Mrs. Barman's door, out of which the child came.

Mrs. Bernstein testified that she was coming from Grand avenue into Third street; that, when she was six or seven feet from the corner of Grand avenue, she saw the child coming from the sidewalk into the street, and also saw the car coming. She holloed to the motorman to stop the car, but he paid no attention. He was looking toward the north side of the street (all of the testimony showed that the child came from the south side of the street). Mrs. Bernstein testified that she halloed when the child was leaving the curb of the sidewalk. At that time the car was 50 or 55 feet west of the place where it struck the child. She testified, further, that no bell was rung, and that the child was walking, and did not stop. Mrs. Emma Bernstein testified that she saw the child and then saw the car about 50 feet on the other side of the alley. She raised her hand and halloed to the motorman, but he was looking to the other side. He paid no attention. No bell was rung.

Lee J. Hill...