Will Childress v. Southwest Missouri Railroad Company
| Decision Date | 03 January 1910 |
| Parties | WILL CHILDRESS et al., Respondents, v. SOUTHWEST MISSOURI RAILROAD COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Jasper Circuit Court.--Hon. David E. Blair, Judge.
AFFIRMED.
Judgment affirmed.
McReynolds & Halliburton for appellant.
(1) The trial court should have discharged the jury and continued on defendant's affidavit of surprise and application for continuance. Fretwell v. Laffoon, 77 Mo. 28; Peers v. Davis, 29 Mo. 184; Connoly v Pehle, 105 Mo.App. 419; Albert v. Seiter, 30 Mo.App. 257; Bragg v. Moberly, 17 Mo.App. 211; 3 Am. and Eng. Cyc. of Laws, 813; Childs v. State, 10 Tex 183; Branch v. Dubree, 55 Ga. 21; O'Connor v. Duff, 30 Mo. 599. (2) The trial court erred in its instructions to the jury in that it left the verdict to the uncontrolled discretion of the jury. Defendants' instruction telling what facts to consider in arriving at their verdict should have been given. R. S. 1899, sec. 2864 as amended by Session Acts 1905, 135, should be construed as being compensatory instead of wholly penal. Casey v. Transit Co., 116 Mo.App. 245; King v. Railway, 98 Mo. 235, 11 S.W. 563; Coover v. Moore, 31 Mo. 574; Behan v. Transit Co., 186 Mo. 447; Stockman v. Railroad, 15 Mo.App. 583; Goss v. Railroad, 50 Mo.App. 614; Schaub v. Railroad, 106 Mo. 74; Knight v. Zinc Co., 75 Mo.App. 541; Barth v. Railroad, 142 Mo. 535.
W. F. Maher, Hugh Dabbs, C. V. Buckley and R. M. Sheppard for respondent.
(1) The evidence of the witnesses, Steltz and Waterhouse, if it had been as defendant insists it was at the first trial, would have been merely cumulative, and this would have been no ground for a continuance. Heinzle v. Railroad, 213 Mo. 102; Cytron v. Railroad, 205 Mo. 692. (2) It was necessary either to accompany the affidavit of surprise with the testimony of the witnesses taken at the former trial or an affidavit of the witnesses setting out what they swore to on the former trial. Mitchell v. Robertson, 117 Mo.App. 348; Spaulding v. City, 104 Mo.App. 45; Meisch v. Sippy, 102 Mo.App. 559; State v. McCullough, 171 Mo. 571. (3) The application for continuance, based upon the affidavit of surprise, did not state that defendant had any defense to plaintiff's cause of action, nor that the testimony of the witnesses, Steltz, Waterhouse and Ford, was untrue, nor that they had any other witness or witnesses by whom they could establish their defense; all of these facts should have been stated in order to make a sufficient application for continuance upon the ground of surprise. Boggs v. Lynch, 22 Mo. 563; Coldwell v. Dickson, 29 Mo. 227. (4) The court did not err in instructing the jury in the language of the statute as to the amount of the penalty they should find in favor of plaintiffs nor in refusing defendant's instruction which required the jury to limit the amount of recovery to compensatory damages only. R. S. 1899, sec. 2864, as amended by the Laws of 1905; Van Housen v. Riggs, 11 Howard 461; Casey v. Transit Co., 116 Mo.App. 247; 30 Cyc., 1335, 29 Cyc., 1491; State v. Sheppard, 192 Mo. 497; Railroad v. Sullivan, 59 Ala. 272; Railroad v. Lansford, 42 C. C. A. 160; Railroad v. Shearer, 58 Ala. 672, 11 Sou. Rep. 800; Railroad v. Landers, 98 Ala. 293, 13 Sou. Rep. 57; Buckler v. Railroad, 112 Ala. 146, 20 So. 606; Railroad v. Burgess, 16 Ala. 509, 22 Sou. Rep. 913; Matthews v. Warner, 29 Grant 507, 26 Am. 396; Freuchey v. Aecleson, 43 N.E. 146; Thompson on Neg., sec. 130; Wheeler v. Boles, 163 Mo. 398; Gusman v. Elect. Co., 173 Mo. 654; Gamache v. Met. Co., 116 Mo.App. 596; Ashley v. Earley, 11 Mo.App. 79; Smith v. Fordyce, 190 Mo. 130; Potter v. Railroad, 117 S.W. 600. (5) The court did not err in giving instruction number one for plaintiffs. McKenzie v. Railroad, 216 Mo. 16; Orcutt v. Bldg. Co., 214 Mo. 51; Clark v. Cox, 118 Mo. 652; Heinzle v. Railroad, 213 Mo. 102; R. S. 1899, sec. 865.
About four o'clock p. m. on the 11th day of December, 1908, Edward Childress, the eight-year-old son of the respondents, was struck and killed by a street car of the defendant on Twentieth street, in the city of Joplin, and this action was instituted by respondents to recover from the appellant the penalty or damages provided under section 2864, Revised Statutes 1899, as amended by the Session Acts of 1905. The cause was tried before a jury resulting in a verdict in favor of the respondents for the sum of four thousand dollars, and the defendant appealed therefrom.
The petition alleged that the appellant was engaged in operating a street railroad, with double tracks, on Twentieth street in the city of Joplin; that said street was used by a large number of people, women and children, for the purpose of traveling on foot and that such fact was well known by the appellant and its servants in charge of its cars; that it became and was the duty of the appellant to keep a vigilant lookout for persons, and particularly children of tender years who might be upon and approaching said tracks; that on the 11th day of December, while respondents' infant son was upon said Twentieth street, exercising reasonable care for his own safety, he was run over and killed by one of the appellant's cars, by reason of the carelessness and negligence of appellant's servants in managing said car, and in failing to keep a proper lookout for children, and particularly their infant son, who was approaching or on appellant's tracks. It was further alleged that the servants of defendants who were in charge of the car, by the exercise of reasonable care and diligence in keeping a lookout for children on or near the track, could and would have seen respondents' son in time to stop said car, and thereby prevented his death, but although they knew, or could have known, that said child was in a perilous situation, they failed to observe said infant, and carelessly and negligently failed to stop said car after observing him, and that on account thereof, he was run over and killed.
The answer admitted that appellant was operating its cars on the streets, and alleged that the accident was caused solely by the negligence and carelessness of said infant suddenly darting in front of one of appellant's cars when the same was so near him that it was impossible for appellant's motorman to stop the car. The reply was a general denial.
The appellant concedes that the evidence on behalf of the respondents tended to support the theory of their petition, and that the case was one for the jury. In fact, there are only three reasons urged for the reversal of the judgment, and they are as follows: First, the court erred in overruling appellant's application for a continuance made during the trial; second, that the court erred in giving respondents' instructions No. 1 and 2; and third, the court erred in refusing appellant's instruction No. 1.
The application for continuance was filed because appellants claimed to have been surprised during the trial by the testimony of A. C. Ford, Mrs. A. J. Waterhouse, and Calvin Steltz. The evidence showed that Twentieth street runs east and west, and that Bird street runs north and south across said street, and that the next street east of Bird street is Ivy street, which also runs north and south across said Twentieth street; and that there is an alley running north and south across Twentieth street between Bird and Ivy streets.
Ford was placed upon the stand by the respondents, and testified, on direct examination, that he was standing on Ivy street at the intersection of Twentieth street, waiting for a car which was coming from the west, going east; that he first saw the car at Bird street, and when he first saw the boy, he was leaving the alley from the north, and that after leaving the alley he started towards the tracks and got over one track and on to the other when he was struck by the eastbound car; he also testified that he did not notice that the speed of the car was slackened in any manner before it struck the boy.
On cross-examination, the witness testified that the boy was traveling in a trot and in a southeasterly direction, and was in about eight or ten feet of the car when he stepped in front of it, and that signals were given about Bird street and after. It was also shown on cross-examination that the witness made a written statement and signed it the next day after the accident, and that the same was made at the request of the appellant's representative. This written statement was offered in evidence by the appellant after the respondents had closed their case in chief, and in this statement the witness stated that the car came down the street, slowly, with the bell ringing; that he did not know which side of the street the boy came from, but thought he came across the north track in front of the car.
This cause had been tried once before, but the witness Ford, was not called by either party to testify. After the introduction of this statement to contradict the witness Ford, the appellant proceeded with the trial, and called the said Mrs Waterhouse and Calvin Steltz, and after they had testified, also called four other witnesses and examined them upon the issues in the case. After they had all been examined, an application for continuance was filed, supported by affidavit, and to which was attached the testimony of said Calvin Steltz and Mrs. Waterhouse given at the former trial. The application stated that appellant had been surprised by the testimony of Ford, Mrs. Waterhouse and Calvin Steltz; that it had in its possession the said prior statement of Ford, and relied upon him testifying as set forth in said statement; that Mrs. Waterhouse was put on the stand at the former trial by the appellant, and her testimony at said trial was in...
To continue reading
Request your trial