Winters v. Kansas City Cable Ry. Co.

• Decision Date: 21 December 1889
• Citation: 12 S.W. 652,99 Mo. 509
• Parties: WINTERS v. KANSAS CITY CABLE RY. CO.
• Court: Missouri Supreme Court

12 S.W. 652

99 Mo. 509

WINTERS v. KANSAS CITY CABLE RY. CO.

Supreme Court of Missouri.

December 21, 1889.

CABLE-ROADS — INJURIES TO PERSONS ON TRACK — CHILDREN — IMPUTED NEGLIGENCE.

1. Where it appears that the gripman on a cable-car saw, as he was about to pass around a curve at the intersection of two streets, a young child near the lamp-post, but, seeing that the track was clear, went on, looking to neither side until within about a foot of the child, who had, according to other witnesses, toddled, at a child's rate, to the track, when he was unable to stop the car to avoid running over the child, there is evidence to sustain a verdict against the company.

2. Defendant cannot object for the first time on appeal that there is no evidence that it was operating the road, where its answer alleges that plaintiff was allowed "to get in front of defendant's car" by the negligence of its mother.

3. In an action by a child for personal injuries, negligence of its mother in allowing it to go upon the street accompanied only by its young sister is no defense.

4. Negligence of his sister, 10 years old, in allowing plaintiff, 3 years old, whom she was accompanying, to get in front of defendant's cable-car, will not defeat his action.

Appeal from circuit court, Jackson county; TURNER A. GILL, Judge.

Action by William Winters, by his next friend, D. R. Stevens, against the Kansas City Cable Railway Company, to recover for personal injuries. Defendant appeals from judgment in favor of plaintiff.

Johnson & Lucas, for appellant. Jewell & Thompson, for respondent.

BLACK, J.

One of the defendant's cable-cars ran upon the plaintiff, a boy three years of age, at the crossing of Ninth street and Grand avenue, in the city of Kansas, crushing one of his legs so that amputation became necessary. Hence this suit by his next friend for damages.

The refusal of the court to give defendant's instruction, in the nature of a demurrer to the evidence, makes it necessary to set out the substance of the evidence on the one side and the other. Ninth street runs east and west, and Grand avenue north and south. The train of cars was going east on Ninth street, and thence around the curve, at the crossing of the two streets, and north on Grand avenue. The accident occurred just as the front or grip car passed around and cleared the curve. The car, in approaching the curve, ascended a grade, but the surface of the streets at the crossing could be seen by the gripman for 100 or more feet before he reached it. There were no obstructions on the streets. The grip-car was open at both ends, but closed at the sides for a space of about two feet from the floor, and above that there were glass windows. The gripman's position placed him in the middle of the car. The boy and his sister, 10 years of age, went to a building, about a block distant from the crossing, by permission of their mother, to gather kindling wood. She lived close to the same place, and says she let them go because she was not able to buy kindling. The children crossed over the tracks from the south to the north side of Ninth street, and thence went east on the sidewalk to Grand avenue, and thence eastward across that street towards their home. The car ran against the boy at a point about 35 or 37 feet east of the west curb of Grand avenue. Of two witnesses, who were nearly a block distant, one of them testified: "When I first saw the boy he was three or four feet from the lamp-post at the north-west corner of the streets. He ran straight from that point until the car hit him. It did not seem to last longer than the snap of the finger." The other witness says: "The boy was trying to cross the street. There was a little girl ahead of him. The last I saw of her she was going." Mr. Vincent, who was 20 or 30 feet distant, says he first saw the boy when near the west track; that he heard some one having a child's voice call, but did not see the little girl until after the car struck the boy. This witness, and another person who was in the car, and saw the boy when within two feet of the car, say he was toddling along, about as a boy of his age would move. Other evidence shows that the gripman was looking to the front; that his attention was called to the presence of the boy, but too late to enable him to stop the car in time to avoid the injury. Mr. Davis testified for the defendant: "I was on the north side of the grip-car, about three seats from the front. I saw the girl and boy starting over the crossing. Just as we swung up on top of the hill the girl stopped, and turned her head and looked at us. As the grip-car came around the curve, she ran back screaming, and threw up her hands, leaving the child by himself. He went in front of the train. At the time the girl turned and ran back she was three or four feet from the track. The gripman then had no time to stop the car. I first saw the child when about one step from the sidewalk. He had a pail or little bundle in his hand." The gripman testified: "I saw the child just as I was about to strike it. It was not more than a foot from the car. I stopped the car within about six feet after I saw the child." On cross-examination he says: "When I first saw the child it was at the lamp-post, on the sidewalk. There was a young lady close to him, — a rod from him. Saw no children near the boy. I did not see any little girl. I just looked out and noticed everything was clear, and went on. I did not look any more. The first I knew the child got across, and was struck. Question. These grip-cars have closed windows all around? Answer. Yes, sir. Q. Standing at the grip, you could see this place, between the lamp-post and where the boy was hurt? A. Yes, sir. Q. If you had been looking? A. You could see a part of the way there; you could see it all by stooping down."

If the defendant's liability in this case is limited to want of care on the part of its servants after they saw the boy in a dangerous situation, then the plaintiff failed to make out a prima facie case. The evidence is all to the effect that the gripman used all the means at his command to avoid the calamity, after he knew the boy was in danger. But the principle of law just stated does not control this case. The defendant is operating dangerous machinery, at a rapid speed, on and along the public streets of the city, and must know, and in law is bound to know, that men, women, and children have an equal right to the use of the highway, and will be upon it. It is the duty of the defendant's servants to be on the lookout, and to take all reasonable measures to avoid injuries to persons who may be upon the street. The duty to be on the watch is no more than ordinary care under such circumstances. The care to be used, to be ordinary care, must depend upon the surrounding circumstances. Now the evidence of the gripman tends to show that when he came to the crossing he rang his bell, looked out and saw the way was clear, and then went on around the curve, neither looking to the right nor left. There is other evidence to the effect that the boy toddled along for a distance of at least 35 feet on the street, and in the direction of the approaching car, after the gripman saw him on the sidewalk, and the car must have traveled a much greater distance. Other persons saw the boy and girl when they started across the street in front of the approaching car. Had the gripman cast an eye to the left when he reached the curve, or while passing it, he would doubtless have discovered these children in time to have avoided the injury. He says he stopped the train in a space of six feet after the grip-car had passed the curve, and, if that be so, then there is reason to believe that the evidence of another witness to the effect that it could have been stopped on the curve in a space of four feet is...