Tobin v. Missouri Pac. Ry. Co.

• Decision Date: 23 November 1891
• Citation: 18 S.W. 996
• Court: Missouri Supreme Court
• Parties: TOBIN v. MISSOURI PAC. RY. CO.<SMALL><SUP>1</SUP></SMALL>

18 S.W. 996

TOBIN v. MISSOURI PAC. RY. CO.¹

Supreme Court of Missouri, Division No. 1.

November 23, 1891.

NEGLIGENCE OF RAILROAD COMPANY — SPEED OF TRAINS — MUNICIPAL REGULATION — DEATH OF CHILD — CONTRIBUTORY NEGLIGENCE — DEATH OF PARTY — SURVIVAL OF ACTION — VEXATIOUS APPEAL.

1. Where both parents sue for damages for the death of a minor son, under the Missouri statute, (1889, § 4425,) and one parent dies before judgment, the entire right of action survives to the other.

2. Though parties are generally bound by their instructions, the asking of them on the merits, after the court has refused one in the nature of a demurrer to the evidence, is not a waiver of the right to review such refusal.

3. Reasonable municipal regulations of the speed of trains are sustainable as an exercise of the police power in populous communities. The running of trains in violation thereof is negligence per se.

4. It appeared that a train, at the ordinance rate of speed, could be stopped within 40 feet, but that it required 100 feet to stop while at the speed it had when it struck plaintiff's child, on the track. Held a question of fact whether the excessive speed was the proximate cause of that injury.

5. If one person be exposed to a peril from the act of another, of which peril the former is ignorant and the latter informed, it is the duty of the latter to use ordinary care to avert the peril or injury in consequence thereof.

6. A child of six years cannot be declared negligent, as a matter of law, in not avoiding a collision with a moving locomotive. It is only bound to use the care of which it is capable, considering its age and capacity.

7. On the facts stated in the opinion the court held that it was a question for the jury whether or not the parents, in permitting their child to wander to the track, were chargeable with negligence.

8. Instructions must be based on evidence.

9. Where a minor child is killed by negligence in running a locomotive, the measure of recovery by its parents, under the Missouri statute, (Rev. St. 1889, § 4425,) is $5,000.

10. To justify an award of damages in the supreme court for a vexatious appeal, it must be wholly without merit. Where any new or fairly debatable question is involved, such damages will be denied.

SHERWOOD, C. J., dissenting.

(Syllabus by the Judge.)

Appeal from circuit court, Jackson county TURNER A. GILL, Judge.

Action by Tobin against the Missouri Pacific Railway Company for damages resulting from the death of his son through defendant's negligence. Verdict and judgment for plaintiff. Defendant appeals. Affirmed.

The other facts fully appear in the following statement by BARCLAY, J.:

The action is for damages resulting from the death of Walter Tobin, a minor son of plaintiff. When it was begun, plaintiff's wife was a party with him; but she died during the proceedings, and her death was suggested. Plaintiff then amended the petition by stating these matters, and repeating the original charges of negligence, etc., the nature of which will appear with the facts of the case.

The defendant — first by demurrer, later by answer, and in various ways — made the point that plaintiff could not maintain the action alone, after the death of his wife, at least, not for the full amount of the statutory damages, (Rev. St. 1889, § 4425;) but the trial court ruled to the contrary of that contention. The case was tried on issues made by the petition, answer, and reply, the scope of which will be developed. Plaintiff's testimony showed that Walter was six years old, and that he was killed by one of defendant's trains. The plaintiff lived in a shanty which he had erected some 50 feet from the track by permission of defendant's foreman. He had been in the employ of defendant for 20 odd years before Walter's death. He had no fence around the house. The accident took place one bright and clear day in July, 1886, about 9 o'clock A. M. The plaintiff was a night watchman on defendant's road. There were six children in his family, only one being younger than Walter. There was a sand-pile on defendant's right of way, between plaintiff's house and the track, and on this morning Walter wandered to defendant's main line by way of the sand-pile. He played along between the rails some 15 or 20 minutes before the locomotive ran him down. He was in the act of stepping off the track when he was hit and knocked some distance, receiving a fracture of the skull and other injuries, from which he died the next day. The locomotive was coming from the east, with a passenger train of 4 or 6 cars, at a speed variously estimated as from 16 to 30 miles an hour, and plaintiff's evidence tended to prove that the bell was not rung or whistle sounded. The place of the injury was within the limits of Kansas City, Mo., and an ordinance of that municipality was read, forbidding the moving of "any locomotive, tender, or car within the city limits at a greater rate of speed than six miles per hour." The boy was struck at a point some 10 or 15 feet west of a public road, called the "Distillery Crossing," (or Woodland avenue,) and upon Front street, which was used as a highway there, and along which the railway runs in an easterly and westerly direction. The defendant's line was nearly level and straight for a long distance east of the distillery crossing; some say for a quarter of a mile, others for half a mile. It was also shown that such a train could be stopped within 30 or 40 feet if moving at the ordinance rate of 6 miles an hour, and within 100 to 400 feet if going at 25 miles an hour. The defendant's testimony tended to show that signals were given by the engine of its approach, that the boy was not seen by any of the train or engine operatives, that the latter were on watch while approaching the crossing, and that they had no knowledge of any such accident as plaintiff's witnesses described. It was further shown that the engineer of the locomotive was careful and skillful. Nothing was said by any of the defendant's operatives who testified, concerning the train's speed at the time mentioned, further than that it was "not running at a rapid and reckless rate of speed," and that the train was due at Kansas City at 7:53 A. M., but passed the crossing at about 9 o'clock A. M. that day. On this showing the court refused an instruction in the nature of a demurrer to the evidence, gave the jury a number of instructions, and submitted the cause to them. The result was a finding and judgment for plaintiff for $5,000, from which defendant has taken the pending appeal after the ordinary motions and exceptions.

Defendant complains of the refusal of three requests for instructions. Two of them read as follows: "(10) The jury are instructed that if the plaintiff or Walter Tobin's mother, or either of them, carelessly and negligently suffered or permitted the said Walter to wander to a place of danger from engines and cars on defendant's road, and that said act contributed to the injuries complained of, then the jury must find for the defendant." "(13) The jury are instructed that, in arriving at their verdict, they are not at liberty to take into consideration any mental anguish or physical suffering of the said Walter Tobin, nor any grief or mental suffering of the plaintiffs on account of the death of said Walter Tobin or the loss of his society." The other was given by the court in a modified form. The original request refused, and the modification given, can best be compared by reading them in juxtaposition:

                As Asked.                            As Modified
                  "(7) If the jury believe                "(7) If the jury believe
                from the evidence in this               from the evidence in this
                case that the said Walter               case that the said Walter
                Tobin was not possessed                 Tobin was not possessed
                of a full exercise of his reasoning     of a full exercise of his reasoning
                faculties, but they                     faculties, but they
                were impaired in such a                 were impaired in such a
                degree that he was unable               degree that he was unable
                to exercise that degree of              to exercise that degree of
                care and prudence which                 care and prudence which
                average children of his age             average children of his age
                usually exercise, then it               usually exercise, then it
                was negligence on the part              was the duty of the parents
                of his parents to permit                of such a child to exercise
                him to go alone or unattended,          that degree of caution
                or without being                        care, and watchfulness
                in the charge of some one               over such child, in
                capable of caring for him,              keeping him off the said
                so near a railroad track as             track and out of places of
                to be in a position of danger           danger, which was reasonable
                from passing trains."                   and proper for parents
                                                        in their standing and circumstances
                                                        in life; and a
                                                        failure to do so would constitute
                                                        negligence on the
                                                        part of such parents."
                

All the other essential facts are stated in the opinion of the court.

McDougal & Robinson, for appellant. R. J. Ingraham and Warner, Dean & Hagerman, for respondent.

BARCLAY, J., (after stating the facts.)

This action is based upon the Missouri act concerning damages, (Rev. St. 1889, § 4425,) and seeks a recovery for the killing of plaintiff's minor son, caused, as was alleged, and as the trial court and jury found, by the negligent management of one of the defendant's locomotives in Kansas City, Mo. Defendant has submitted a number of objections to the rulings in the trial court. They will be considered in turn.

1. It is claimed that the right of action, if any, vested in the...