Wahl v. St. Louis Transit Company
| Decision Date | 02 April 1907 |
| Citation | 101 S.W. 1,203 Mo. 261 |
| Parties | RAYMOND WAHL, by next friend, BERTHA A. WAHL, v. ST. LOUIS TRANSIT COMPANY, Appellant, and UNITED RAILWAYS COMPANY |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Warwick Hough Judge.
Affirmed.
Glendy B. Arnold for appellant; Boyle & Priest of counsel.
(1) Even though it were true that the motorman got down on the step and reached toward plaintiff and thereby caused him to run in front of the car and to be injured, yet defendant is not liable, because it appears from all the evidence in this record that such an act did not pertain to the particular duties of the motorman as such and was not within the scope of his employment. Snyder v. Railroad, 60 Mo. 413; Cousins v. Railroad, 66 Mo. 576; Meade v Railroad, 68 Mo.App. 97; Overton v. Railroad, 111 Mo.App. 613; Railroad v. Mogk, 44 Ill.App. 17 80 Ill. 411. (2) The judgment should be reversed because the verdict of the jury was actuated by passion and prejudice against defendant and sympathy and compassion for plaintiff. Spohn v. Railroad, 87 Mo. 84; Lehnick v. Railroad, 94 S.W. 996.
A. R. Taylor, Bishop & Cobbs and Albert E. Hausman for respondent.
(1) It is the highest duty of the motorman in operating cars in streets of a city to take care to avoid running his car over persons on the street, whether adults or children. Riska v. Railroad, 180 Mo. 179; Eckhard v. Railroad, 190 Mo. 618; Koening v. Railroad, 194 Mo. 573. (2) Instructions which are good as far as they go, but do not cover the entire case, amount in civil cases only to non-direction and not to error, and it is the duty of the other party to ask proper instructions to supply the shortcomings of those asked by his adversary. Bank v. Ragsdale, 171 Mo. 186; Drey v. Doyle, 99 Mo. 465; Cornwell v. Railroad, 106 Mo.App. 135, 174 Mo. 444; Railroad v. Randolph Townsite Company, 103 Mo. 468; Montgomery v. Railroad, 181 Mo. 477; Hall v. Hall, 107 Mo. 101; Wheeler v. Bowles, 163 Mo. 398; 11 Ency. Pl. and Pr., pp. 217 to 224; 2 Thompson on Trials (1889), pp. 1639, 1697. (3) It is misleading and confusing to incorporate in an instruction facts which are not in dispute, thus requiring proof of them by the party alleging them. Such facts may be assumed. Anderson v. Bradford, 102 Mo.App. 433; Park v. Railroad, 178 Mo. 108; McLean v. Kansas City, 100 Mo.App. 625; State ex rel. v. Branch, 151 Mo. 630; Farber v. Railroad, 139 Mo. 285; Weldon v. Railroad, 93 Mo.App. 675. (4) Defendant can not now call upon the appellate court to decide a question of fact which it did not offer to submit to the jury by a request that the trial court give an instruction properly submitting said question to the jury. A party is limited on appeal to the theory upon which he tried his case in the lower court. Bertram v. Railroad, 108 Mo.App. 70; Horgan v. Brady, 155 Mo. 659; Chinn v. Naylor, 182 Mo. 583.
This is an action by Raymond Wahl, a minor, who at the time of his injury was of the age of five years. The action was brought through his mother, who was duly appointed as his next friend prior to the filing of the petition. The petition alleges that the defendant, at the time of the injuries complained of, was a corporation by virtue of the laws of Missouri, and used and operated a railway and the cars thereon for the purpose of transporting persons for hire from one point to another in the city of St. Louis. That Twenty-second street at the time and place mentioned in the petition was an open public street within the city of St. Louis; that on the 3d day of June, 1903, the plaintiff was on Twenty-second street north of Montgomery street near the defendant's track and in danger, by reason of his youth and want of discretion, of being struck and injured by the defendant's northbound car then approaching the place where plaintiff was beside and near the defendant's track; that whilst plaintiff was in such exposed position liable by reason of his youth and want of discretion to expose himself to peril from said car, the motorman of said car negligently left his post on said car where he could control and manage the said car and negligently waved to the plaintiff and other children to move, and thereby caused the plaintiff, who was standing on the side of the bank near the defendant's track, to start to run across said track whilst said motorman was so negligently away from his post, and when he was unable to reach his post and stop said car, and thereby negligently caused and suffered said car to run upon and against the plaintiff, and drag him and permanently injure him, cutting off his right thumb, crushing and mangling the fingers of his right hand, crushing his right hand, tearing off his scalp and lacerating his head, knocking out six teeth, lacerating his face, lips and mouth and injuring him internally. That by his injuries so sustained plaintiff has suffered and will suffer great pain of mind and body and is maimed and crippled for life and will lose the earnings of his labor after he shall arrive at the age of twenty-one. He prayed for damages in the sum of ten thousand dollars. The answer was a general denial.
The action was originally brought against both the St. Louis Transit Company and the United Railways Company, but at the close of the evidence, the trial court sustained a demurrer to the evidence in behalf of the United Railways and the cause went to the jury against the defendant Transit Company only.
The evidence for the plaintiff tended to prove that Twenty-second street and Montgomery street are both public highways in the city of St. Louis. Montgomery street runs west from Twenty-second street, but does not cross Twenty-second to the east; that on the third of June, 1903, the Transit Company, the defendant herein, operated a single track railway on Twenty-second street, on which its cars ran north; that the plaintiff's mother lived three doors from the corner of Montgomery and Twenty-second streets at house numbered 2205 Montgomery street, and plaintiff's father was dead. At the time of the injury, the plaintiff was five and a half years old and lived with his mother. On the third day of June, 1903, the Laclede Gas Light Company was engaged in putting some gas pipes just north of the north crossing of Montgomery and Twenty-second streets, and for this reason had excavated a trench in Twenty-second street, a foot or so north of said north crossing. The Gas Company in making the excavation in Twenty-second street near the north crossing thereof on Montgomery street, had by their servants thrown the dirt taken out of the trenches into a pile on the north side of the trench and this pile of dirt extended up to within a foot or so of defendant's track. The plaintiff was playing at this pile of dirt, filling a box he had with loose dirt and then emptying it again. The plaintiff's evidence tended to show that while at play on this pile of dirt, he was in dangerous proximity to a passing car if he should move or slip toward the track. A north-bound car on defendant's track came along about five o'clock that afternoon. The motorman on this car, seeing the child was near the track, stepped from his place at the front of the car, with his right foot down on the step of the front platform, and as it approached where the child was, reached out with his arm to wave or frighten the child away, whereupon the plaintiff undertook to run across the track in front of the car, and was struck and knocked down by it and run over and sustained the injuries alleged in the petition. The injuries were so serious that the verdict is not assailed as excessive if otherwise proper.
There was a sharp conflict in the evidence. On the part of the plaintiff the evidence of two of the employees of the Gas Light Company, Sims and Murphy, tended to show that they were working in the trench, which was about two and a half feet wide and from one to four feet deep, north of and adjoining the north crossing of Montgomery street and running east and west from the car track toward the curbing. Murphy was digging in the trench and Sims was shoveling away the earth and macadam that Murphy had thrown out within about a foot of the trench and on the north side thereof and running its full length. The earth was piled up a foot or two high. Sims testified that he was standing on the north side of the hole at the west end near the track and the little boy, the plaintiff, was playing with the dirt that he piled up there that the little boy was standing near enough to the track, if he had remained still, for the motorman to have reached out with his hand and touched him, or about three feet from the side of the car; that when the motorman reached out, the plaintiff started to run. The plaintiff was looking at the car as it came towards him; when the motorman reached out after him he got scared and ran down and around the pile of dirt and went in front of the car; the car did not stop at the crossing, though the evidence tends to show that one passenger jumped off there. When the motorman saw the plaintiff start towards the track, he stepped back to his post and tried to stop the car before it struck the boy, but before the motorman regained his position, the boy was knocked down by the car. The two witnesses, Sims and Murphy, fixed the place of the accident near the trench where they were working not over six feet from the crossing; another witness for the plaintiff, a passenger, thought it occurred about twenty feet from the crossing "more or less;" and a lady, Mrs. Heitland, testified that she saw the car just as it was coming from the crossing at Montgomery street, and saw the child jump from the mud pile that the gas...
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