Van Natta v. People's Street-Railway, Electric L. & P. Co.

• Court: Missouri Supreme Court
• Writing for the Court: Burgess
• Citation: Van Natta v. People's Street-Railway, Electric L. & P. Co., 34 S.W. 505, 133 Mo. 13 (Mo. 1896)
• Decision Date: 03 March 1896
• Parties: VAN NATTA v. PEOPLE'S STREET-RAILWAY, ELECTRIC LIGHT & POWER CO. et al.

34 S.W. 505

133 Mo. 13

VAN NATTA v. PEOPLE'S STREET-RAILWAY, ELECTRIC LIGHT & POWER CO. et al.

Supreme Court of Missouri, Division No. 2.

March 3, 1896.

NEGLIGENCE OF STREET-RAILWAY COMPANY — EXCESSIVE SPEED — QUESTION OF FACT — INSTRUCTIONS ON NEGLIGENCE — MINOR — DEGREE OF CARE.

1. Inasmuch as negligence in operating a street car at an excessive rate of speed depends upon the facts connected with the accident which is claimed to have been occasioned thereby, and the place where it occurred, it was not error to submit to the jury the issue as to whether the car that caused the injuries to plaintiff was moving at rapid speed, where the evidence disclosed that the rate thereof was from 3½ to 5 miles an hour.

2. An instruction, in an action by a passenger against a street-railway company for personal injuries, that if the jury find "that defendant's road consisted of two tracks, which were in proximity to each other; that plaintiff was a passenger in its west-bound car upon the north track; that the car stopped to permit him to alight; that on alighting from said car plaintiff passed in the rear of said west-bound car, and attempted to cross the south track of defendant's road to the sidewalk on said street; that the servants of defendant in charge of the east-bound car, as they approached the west-bound car, saw that it was stationary, and knew that their view of the street was obstructed by the stationary west-bound car, and that said servants in charge of said east-bound car approached said stationary car, while plaintiff was alighting from the same, at a rapid rate of speed, without giving any signal to warn plaintiff of their approach, and without checking the speed of the same, and in so doing were guilty of negligence, and in consequence thereof plaintiff was injured," — was not objectionable in that it did not tell the jury what facts would constitute negligence on the part of defendant.

3. But an instruction that "it was the duty of the servants in charge of the east-bound car, in approaching and passing by a car which they saw standing on the track, or in the act of stopping to let off passengers, to conduct and run said east-bound car with great caution and care, and at such a rate of speed that they might be able to check and stop the same should it become necessary in order to avoid striking and injuring any one alighting and passing from such car to the sidewalk of said street; and if the jury find that plaintiff was injured while attempting to gain the sidewalk, after alighting from the car, in consequence of the negligent manner in which the servants in charge of said east-bound car operated the same while approaching and passing the car from which plaintiff alighted," the verdict must be for plaintiff, "provided that plaintiff was exercising that degree of reasonable care usually exercised by boys of his age and capacity," — was objectionable, in that it assumed that the servants in charge of the east-bound car saw that the west-bound car was standing still, or that they knew that it was in the act of stopping to allow passengers to alight; the evidence on that issue being conflicting, and not warranting such assumption.

4. Said instruction was also objectionable in that it imposed upon defendant the duty to run its car at such a rate of speed that those in charge thereof might be able to stop the same, should it become necessary, in order to avoid striking and injuring any one alighting and passing from such car, regardless of the place and circumstances under which plaintiff left the car or the injury occurred.

5. An instruction as to the degree of care required of a boy injured by a street car should state that the law demanded the exercise of care and prudence equal to plaintiff's capacity,

age, knowledge, and experience, regardless of what care and prudence boys of his age and capacity are required to exercise.

Appeal from circuit court, Buchanan county; H. M. Ramey, Judge.

Action by Allane Van Natta, by his next friend, Thomas F. Van Natta, against the People's Street-Railway, Electric Light & Power Company, and John R. Owens, receiver of said company, for personal injuries. There was a judgment for plaintiff, and defendants appeal. Reversed.

From a judgment in favor of plaintiff, a boy nine years of age, in the sum of $7,000, against defendants, for personal injuries sustained by him by being run over by the cars of defendant company, defendants appealed.

R. A. Brown, for appellants. Spencer & Mosman, for respondent.

BURGESS, J.

The accident happened about half past 10 o'clock in the forenoon of the 20th day of July, 1892, at the intersection of Frederick avenue with Eleventh and Faraon streets, in the city of St. Joseph, Mo. At that time defendant company owned and operated by electricity a double-track line of street railway, the tracks of which lie parallel with each other, near the center of the avenue, as close together as they can be laid so as to permit the cars to pass each other. The tracks run east and west. Cars moving east do so on the south track, while those moving west do so on the north track. Plaintiff, his brother, and Clarence Corby, desiring to go west to Eleventh street, boarded car No. 19 at the east end of the avenue. When the car arrived at Eleventh street, the point at which plaintiff and his companions desired to alight, the conductor in charge of the car gave the usual signal to the motorman for the car to stop in order that they might do so. The evidence as to whether or not the car came to a full stop before the boys started to alight, as to what transpired there at that time, and especially as to what was said and done by the conductor, was conflicting. Just as the boys had alighted, and started around the rear end of the car towards the sidewalk on the south side of the avenue, car No. 21 pulled up from the west, ran against the plaintiff and his brother, knocking them down, the plaintiff going under the car. His left leg was caught in the cogwheels which propel the car, and he shoved along on his back five or six feet before the car was stopped. Several efforts to release plaintiff's leg, which was badly crushed below the knee, from the cogwheels, proving unavailing, it became necessary to amputate it before he could be removed from under the car. This car was stopped at the intersection of the line of Eleventh street with Frederick Avenue. It also appeared that a car moving at the same rate of speed that this was could be stopped in eight or ten feet. An ordinance of the city of St. Joseph was read in evidence, which requires all street-railway companies to provide each car with a fender "placed not more than two inches from the ground or surface of the street," which shall "entirely surround the running gear of the car. Such fender shall be pointed at each end of the car, shall extend as far as the...