Willmott v. Corrigan Consol. St. Ry. Co.
Decision Date | 25 May 1891 |
Citation | 16 S.W. 500 |
Parties | WILLMOTT v. CORRIGAN CONSOLIDATED ST. RY. CO. |
Court | Missouri Supreme Court |
Appeal from circuit court, Jackson county; JAMES H. SLOVER, Judge.
Plaintiff, a minor, brought this action by his next friend to recover for alleged personal injuries sustained while a passenger on one of defendant’s street railway cars. His evidence tended to show this state of facts: Plaintiff was 12 years of age at the time of the accident, in September, 1885. He started down town about 3 o’clock P. M. with another boy about 14 years old. They boarded one of the street-cars of defendant’s line, in Kansas City Mo., some two blocks away from the point of the injury. The car was moving slowly at the time. It was in charge of a driver, who acted also as conductor. He was inside of the car, collecting fares, when the boys came aboard. They got on by way of the front platform. Plaintiff’s companion took a position on the platform proper, and plaintiff himself remained on the lower step, his back towards the street facing the other boy, his right hand grasping the hand-rail attached to the body of the car. There was plenty of vacant space inside the car. The boys paid their fares to the driver. Shortly after that, while the latter was standing on the front platform near the boys, driving the team of mules which formed the motive power, he suddenly commenced whipping his team vigorously, putting the mules into a rapid and irregular gallop. The car soon ran over some stone or other slight obstruction on the rail, causing the car to jolt suddenly, and throwing plaintiff off. The car ran over his leg, and inflicted serious injuries upon him. The explanation of the driver’s conduct is given in the statement that an acquaintance of his got aboard the car at the front, and on being asked for fare, refused it; that the driver then said, “You’ll have some fun getting off,” and, when nearing the place where this party proposed to alight, the driver whipped the mules into their best speed to increase the difficulty of his leaving the car. This action appears to have been intended as a sort of rough practical joke between these men. Its result, according to plaintiff’s theory, was the injury sued for as a consequence of the negligence of the driver in handling the car and team in the manner described. The defendant asserted the contributory negligence of plaintiff, and denied all fault on its own part. The evidence on its side concedes that plaintiff was a passenger standing on the front platform near the driver, but tends to show that the car was moving at ordinary speed; that the boy was not jolted off in any way, but that he attempted to step off the front platform while the car was in motion, with a view to get on the rear platform as it passed, and in that attempt fell under the wheels and was hurt. The cause was tried before a jury. At the close of the testimony the court gave 6 instructions at plaintiff’s instance, 16 for the defendant, modified and gave 10 others asked by defendant, and 1 of its own motion,--in all, 33. This was on April 27, 1888. The jury then retired for deliberation. On the 30th of April, no agreement having been reached, the court brought the jury back again, and of its own motion gave them another instruction, (the 34th,) as follows. Before receiving any more instructions, the jury, on the same day, returned a verdict for plaintiff for $5,000 damages. The usual motions having been overruled and exceptions saved, the defendant took the pending appeal.
Pratt, Ferry & Hagerman, for appellant.
Jones & Jones, and Crittenden, Stiles & Gilkerson, for respondent.
BARCLAY, J., (after stating the facts as above.)
From the sketch of the case given in the accompanying statement it is apparent that the issues presented at the trial were few and clear. The rules of law governing them are well established and can be stated in a few words.
1. Plaintiff was a passenger on defendant’s railway car. As such, defendant’s duty towards him, though not that of an insurer of his safety, was to exercise the highest practical care, which capable and faithful street-railroad men would take in like circumstances, to safely carry him during the trip. Furnish v. Railway Co., (1890, Mo.) 13 S.W 1044. On the other hand, plaintiff, though only 12 years of age, was bound to use prudence commensurate with his age and intelligence to avoid injury. As was said in a late case: "To the extent that a child has knowledge and understanding of a danger, or where it is of such nature as to be necessarily obvious even to one of his years, he is under a legal duty to avoid it." ...
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