Van Natta v. People's Street Railway
| Decision Date | 03 March 1896 |
| Citation | 34 S.W. 505,133 Mo. 13 |
| Parties | Van Natta v. The People's Street Railway, Electric Light & Power Company et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Buchanan Circuit Court. -- Hon. H. M. Ramey, Judge.
Reversed and remanded.
R. A Brown for appellants.
(1) The first instruction given on behalf of the plaintiff was clearly erroneous for the following reasons: First. It submitted to the jury questions not based upon any evidence in the case. It left it to them to determine whether or not the east bound car passed the west bound car at a rapid rate of speed, when all the evidence and the physical facts in the case showed, not only that the car was going slow, but that it was impossible for it to run fast at the place where the accident occurred. Bowen v. Railroad, 75 Mo. 428; Skyles v. Bollman, 85 Mo. 35; Tabler v Railroad, 93 Mo. 87; Harty v. Railroad, 95 Mo 371; O'Connor, etc., Co. v. Frank Alexe, 28 Mo.App. 184; Fairgrieve v. Moberly, 29 Mo.App. 155; Proctor v. Loomis, 35 Mo.App. 489; Anchor Milling Co. v. Walsh, 37 Mo.App. 573. Second. It did not advise the jury as to the constituent elements of negligence, but left them to determine for themselves what facts would make good the charge of negligence against defendants, thereby placing defendants at the mercy of the imagination, speculation, and loose conceptions of the jury. What constitutes negligence or care is a question of law, and whether it exists in a given case is a question of fact for the jury. The court should have told the jury what facts would constitute negligence, if they found them to exist, and it was the province of the jury only to determine whether or not such facts existed. Zimmerman v. Railroad, 71 Mo. 491; Yarnell v. Railroad, 75 Mo. 583; Senate v. Railroad, 41 Mo.App. 297; Wilburn v. Railroad, 36 Mo.App. 215; Kick v. Doerste, 45 Mo.App. 140; Ravenscraft v. Railroad, 27 Mo.App. 617. (2) There is no evidence in this case that the defendant railway company was guilty of any negligence, which contributed to plaintiff's injury, and the demurrer offered at the close of plaintiff's testimony, and defendants' refused instructions numbered 1 and 2, in the nature of demurrers, offered at the close of defendants' testimony, should have been given. Kennedy v. Railroad, 43 Mo.App. 4; Maschek v. Railroad, 71 Mo. 276; Mayer v. Railroad, 64 Mo. 274; Isabel v. Railroad, 60 Mo. 482; Railroad v. Spearen, 47 Pa. St. 300; Railroad v. Hammel, 44 Pa. St. 375.
Spencer & Mosman for respondent.
(1) The negligence of Highland, the conductor, and Wilkins, the motoneer of the east bound car (number 21), was so gross, that on that ground alone, the defendant should be held liable in this case. That car was run at the highest speed possible at that point, past the west bound car, which they well knew had stopped to allow passengers to alight. This was not only contrary to the dictates of ordinary care and prudence, but in defiance of the well known regulations of the company. (2) The negligence of Harry Tibbs, the conductor of the west bound car (number 19), from which the boys alighted, if it was the only negligence in the case, would render the defendant liable. He stopped his car and assisted the boys to alight. This was an assurance on the part of the company that it was safe for them to alight there. If there were any dangers or perils to anyone in alighting there, he was bound to warn them of it. He did not realize till after the boys were struck, that car number 21 was approaching. If the bell of that car was rung as defendants' witnesses say, he should have heard it and given the boys timely warning to look out for the car. If the bell was not rung, though it might show the men in charge of the other car negligent, it was no excuse for him. He was bound to warn the defendant passengers of any dangers to be incurred alighting at that point. Burbridge v. Railroad, 36 Mo.App. 683; McGee v. Railroad, 92 Mo. 208; Weber v. Railroad, 100 Mo. 203; Eswin v. Railroad, 96 Mo. 297. (3) The defendant's negligence in failing to provide its cars with fenders that would prevent anyone knocked down from coming in contact with the machinery, or being run over by the wheels, is of itself sufficient to render the defendant liable in this action. Weller v. Railroad, 120 Mo. 654; Rosenkranz v. Railroad, 108 Mo. 17; Furnish v. Railroad, 102 Mo. 677; Loe v. Railroad, 57 Mo.App. 350. (4) First. There was no error in giving plaintiff's first instruction. The jury were entitled to find from the physical facts shown in evidence, without direct proof, that the rate of speed was negligent under the circumstances of this case. Chartrand v. Railroad, 57 Mo.App. 427; Baker v. Railroad, 122 Mo. 548. Second. It correctly stated the measure of care required of the defendant. Bischoff v. Railroad, 121 Mo. 220; Humbird v. Railroad, 110 Mo. 80; Boland v. Railroad, 36 Mo. 492; Sandifer v. Lyon, 52 Mo.App. 558; Schmitz v. Railroad, 119 Mo. 268; Ridenhour v. Railroad, 102 Mo. 287; Burger v. Railroad, 112 Mo. 250. Third. The demurrer was rightly overruled. Barr v. City, 105 Mo. 550; Henry v. Railroad, 113 Mo. 536; McGee case, supra; Winter's case, supra. Fourth. The court did not err in refusing defendant's instructions. It was the defendant's duty to so use its franchise in the public streets as not to endanger the public. Burger v. Railroad, 112 Mo. 246; Hamilton v. Mining Co., 108 Mo. 373; Huhn v. Railroad, 92 Mo. 449; Bluedorn v. Railroad, 108 Mo. 444; Lockwood v. Railroad, 122 Mo. 98. Fifth. Obedience to the ordinance would have prevented the accident, and hence the defendant is liable. Hanlon v. Railroad, 104 Mo. 387.
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.
The accident happened about half past 10 o'clock in the forenoon of the twentieth day of July, 1892, at the intersection of Frederick avenue with Eleventh and Faraon streets in the city of St. Joseph, Missouri. 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 a car (number 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 toward the sidewalk on the south side of the avenue, a car (number 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 required 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," and to There were no fenders on the car at the time of the accident, but it was shown to have had fenders on it the day next thereafter.
Defendant introduced evidence tending to show that the cars could not be run with fenders upon them, such as required by the ordinance, that a gutter at Edmund crosses the track, and every time the car passed over the gutter, the car dipped so that the fenders were broken off. In opposition to this, defendant's own servants swore that fenders sometimes lasted a week; that every trip over the gutter did not break them off; that defendant had men in its employ whose duty it was to repair and replace the fenders. Plaintiff's evidence showed that the fenders remained on the cars for a greater part of a month.
The defendant, John R. Owens, after the accident, was appointed receiver of the defendants' railway and property, and he was, therefore, made a party defendant in the cause.
Plaintiff's first instruction is criticized in that it is insisted that it submitted to the jury questions not based on any evidence; left them to determine whether or not the east bound car passed the west bound car at a rapid rate of speed, when all the evidence and physical facts showed to the contrary, and did not advise them as to the constituent elements of negligence.
The evidence...
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