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 |
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.
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: The other witness says: 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: The gripman testified: On cross-examination he says:
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...
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