Turnbow v. Dunham
| Decision Date | 27 July 1917 |
| Parties | PAUL TURNBOW, By His Next Friend, ORAH TURNBOW, Appellant, v. R. J. DUNHAM et al., Receivers of METROPOLITAN STREET RAILWAY COMPANY |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. Kimbrough Stone, Judge.
Reversed and remanded.
John N Southern for appellant.
(1) The use of the words "person" and "persons" approaching the tracks of a street car, in respondents' instruction, does not express the law of this case, but the contrary. And the use of the word persons in defendant's instruction number six also erroneously directed the jury in the case at bar. Simon v. Railroad, 231 Mo. 74; Childers v. Railroad, 141 Mo.App. 684. (2) There was no evidence to support instruction given for defendant to sustain the proposition tat the motorman took precautions to avoid injuring the child, at the time the front trucks safely passed him, the appellant herein, but positive evidence to the contrary. It assumes facts not in evidence and eliminates essential elements from consideration of the jury. Simon v. Railroad, 231 Mo. 80; Schumaker v Breweries, 247 Mo. 161; Sinamon v. Moore, 161 Mo.App. 168; Bouillon v. Laclede Co., 165 Mo.App 321; Kendrick v. Davis, 156 S.W. 490. (3) The court erred in giving for respondent instructions assuming that there was evidence that the child ran from where the motorman claims to have seen him, when the front trucks passed him, to and under the rear wheels of the car. The record contains no evidence to that effect. Eckhard v. Transit Co., 190 Mo. 620; Shanahan v. Transit Co., 109 Mo. 233. (4) Respondent's instructions on proximate cause, are not applicable to this cause, for the reason that the appellant, at the time of the injury, was a mere child and known to be so by the motorman, at the time of the collision resulting in the injuries. Simon v. Railroad, 231 Mo. 75; Cytron v. Railroad, 205 Mo. 719; Meker v. Railroad, 178 Mo. 186; Livingston v. Railroad, 170 Mo. 470; Gringle v. Railroad, 213 Mo. 114; Cornovisky v. Transit Co., 207 Mo. 273. (5) Respondent's instruction that "If appellant's injuries were the result of unavoidable accident and not the negligence of motorman," was reversible error. Simon v. Metropolitan, 178 S.W. 450. (6) The plaintiff under all the testimony in the case was entitled to a verdict in his favor and his motion for a new trial should have been sustained. Cytron v. Railroad, 205 Mo. 720; Livingston v. Railroad, 170 Mo. 452; Simon v. Railroad, 231 Mo. 74. (7) In respondents' instruction number 2, the court instructs the jury they must find "that defendant's motorman was guilty of negligence in not taking such precautions to avoid injuring the plaintiff after the motorman saw him in a position of danger, if you believe he was in a position of danger, from being run over by the rear wheels of the car, as a reasonably prudent person would have done under the same circumstances, and unless you so find, then, plaintiff cannot recover in this case and your verdict must be for the defendants," omitting to include in the instruction the necessary phraseology of the motorman's duty, "or by the exercise of ordinary care, might have seen him in a position of danger." This is fatal error and takes from the consideration of the jury, whether the motorman could, in the exercise of such care, have seen the child approaching the car, after it had stepped from the curb into the street.
L. T. Dryden for respondents.
(1) The defendant's peremptory instruction in the nature of a demurrer to all the evidence should have beeen sustained, no negligence whatever upon the part of the motorman having been shown. 2 Nellis on Street Railways (2 Ed.), p. 937, sec. 410; Budger v. Albany St. Ry. Co., 42 N.Y. 459; Boland v. Railroad Co., 36 Mo. 492. (2) These instructions, it seems need only be read to convince the court that they correctly state the law if the appellant was entitled to go to the jury at all. The first simply told the jury that the motorman should have exercised such care as a reasonably prudent person under the circumstances would have done. The second calls the jury's attention to the fact that because the real defendant in the case was a corporation should not in anywise mitigate against it in arriving at a verdict. Feary v. Metropolitan St. Ry. Co., 162 Mo. 97; State v. Talbott, 73 Mo. 347. (3) Complaint is made that the term "proximate cause" is not defined, and that the instructions are not applicable to this case. The term "proximate cause" is defined in instruction 9. The jury unquestionably understood that by the term "proximate cause" was meant the negligence of the motorman as defined in other instructions that caused the unfortunate accident. Battles v. Railroad, 178 Mo.App. 596; Kelley v. Railroad, 75 Mo. 138; Warner v. Railroad, 178 Mo. 125; King v. Railroad, 211 Mo. 1; McGee v. Railroad, 214 Mo. 544; Schmidt v. Transit Co., 140 Mo.App. 182. (4) Appellant complains of instruction 2, given at the instance of respondents. There might be cases where the evidence would be such that the instructions ought to be as contended by appellant's counsel; but in this case there are two reasons why this instruction correctly stated the law as applicable to the facts in this case, to-wit: First, the motorman himself testified that he saw the child when he started the car from the west side of Union Street and until after the front part of the car had passed it. So it was not a question of what he might have seen, because he actually did see, and the question here is what he should have done under the admitted fact that he actually saw the child. Second, appellant submitted the case under this theory as will be seen by instruction 1 as amended by the court, given at the instance of appellant.
Plaintiff, a minor three years of age, sues, by next friend, to recover the sum of thirty thousand dollars for the loss of both feet. The injury is alleged to have been caused by the negligence of the defendant in the operation of its street car. Trial was had in the circuit court of Jackson County, at Independence, resulting in a verdict for the defendant. Plaintiff has duly appealed.
The evidence was substantially as follows:
The injury occurred about six p. m., March 29, 1912, near the point where the east line of Union Street intersects Lexington Street at Independence, Missouri. Lexington Street, upon which the defendant's double street-car tracks are situated, runs east and west. Union Street crosses it at right angles. A grocery store is on the south-east corner of this crossing. The car which injured plaintiff was an east-bound car, operated on the south tracks. Union Street, at its intersection with the south line of Lexington Street, was forty feet in width. The distance from the curbing, in front of the corner grocery store, to the south rail of the south track, was ten feet and five inches. Just prior to the accident the car in question made a stop on the west side of Union Street for the purpose of discharging passengers. One passenger alighted. Signal was then given for the car to start and the motorman started the car in the ordinary way and had proceeded to a point where the rear trucks of the car were almost directly north of the center of the grocery store, when a scream was heard and the car was brought to an immediate stop; some witnesses saying that it stopped in five or ten feet, others saying that it went as far as twenty-five feet. The scream heard was that of the plaintiff, and he was found lying with his feet (crushed) upon the south rail and his head and body toward the south. He was immediately taken to a near-by undertaking establishment, and the undertaker bound his limbs with a cord to stop the flow of blood. He was shortly removed to a hospital. Upon examination, amputation was found to be necessary, which was accordingly performed. Both feet were amputated a short distance above the ankle. In about two months the amputated limbs had healed and, later, at the trial, plaintiff was able to walk upon artificial limbs.
A lady passenger on said car was standing near the front vestibule, and as the front of the car passed the grocery store she saw the child standing in the street at a point about half way between the car and the curb. The child was facing the car. The witness said the child might have been walking slowly, but she was not sure. After the car had moved a short distance she heard a child scream, and the car was stopped and the injured child picked up.
One of the gentlemen passengers testified that as the car was crossing Union Street he saw the motorman look out the door and heard him apply the air. The witness then looked out the window to see what the trouble was, and saw the child lying face downward with its feet on the track, about one foot in advance of the rear trucks. Immediately thereafter the child screamed and the car was brought to a stop.
A clerk in the corner grocery looked out as the car was passing. He states that it looked like the child had his hands on the side of the car along about the center of the car. He saw the little boy fall and the rear wheels run over his feet. This witness was the first one to the injured child. He picked the child up, carried him in and called a doctor.
Plaintiff used the motorman as a witness. The motorman testified that he first saw the child just as he started his car from the west side of Union Street. At that time the child was on the sidewalk in front of the grocery store. About the time the front of the car reached the center of Union Street, he saw the child step down into the street, facing north and looking into the motorman's face. When the motorman saw the child step into the street he states that he turned...
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