Wyatt v. Citizens Ry. Co.

• Decision Date: 28 February 1874
• Parties: ISAAC WYATT Appellant, v. THE CITIZENS RAILWAY COMPANY Respondent.
• Court: Missouri Supreme Court

55 Mo. 485

ISAAC WYATT Appellant,

v.THE CITIZENS RAILWAY COMPANY Respondent.

Supreme Court of Missouri.

February Term, 1874.

Appeal from Buchanan Circuit Court.

Ringo & Masterson, for Appellant.

The second instruction given for respondent was wrong. The question of negligence in this case was for the jury.

Where the facts are not perfectly clear, as in the case at bar, he whole matter should be submitted to the jury under proper instructions.

The jury should determine whether, notwithstanding the imprudence of the injured person, the defendant could not in the exercise of reasonable diligence have prevented the catastrophe. (Huelsencamp vs. Citizens Railway, 37 Mo., 537; Morrissey vs. Wiggins Ferry Co., 43 Mo., 380; Id., 47 Mo., 521; O'Flaherty vs. Union R. R. Co., 45 Mo., 70; Brown vs. H. & St. J. R. R. Co., 50 Mo., 461; Walsh vs. Miss. Val. Transpt. Co., 52 Mo., 434; Trow vs. Ver. Cent. R. R., 24 Ver., 487; Lovett vs. Salem & S. D. R. R. Co., 9 Allen, 557; Owen vs. Hudson River R. R. Co., 2 Bosw., 374; Macon & W. R. R. Co. vs. Davis' Admr., 18 Ga., 679; Id. vs. Wynn, 19 Ga., 440; Aug. & Sav. R. R. vs. McElmurry, 24 Ga., 75; New Haven Steam Bt. Co., vs. Vanderbilt, 16 Conn., 421; Birge vs. Gardiner, 19 Conn., 507; Kerwhacker vs. C C. & C. R. R. Co., 3 Ohio St., 172; 2 Redf. Railw., 225-236 Runyon vs. Cen. R. R., 1 Dutch., 556; Central Railway & Banking Co. vs. Davis, 19 Ga., 437; Bird vs. Holbrook, Bing., 628.)

It made no difference under that instruction what dgree of negligence, carelessness, recklessness or miscondu the respondent might have been guilty of, in the ma agement of its car, at the time appellant's son sustained t injury complained of, if appellant's son “was seventeen yea old” and ““possessed of ordinary mental capacity,” and “w not an idiot” nor “an insane person.” The finding of tho specified and isolated facts by the jury, was sufficient to excuse the respondent in any line of conduct which it migh choose to adopt and pursue in reference to a plain and indi pensable duty. It was utterly impossible for this instructio to do otherwise than confuse and mislead the jury. (Mead vs. Brotherton, 30 Mo., 201; Kennedy vs. N. Mo. R. R. Co, 36 Mo., 351; Meyer vs. Pacific R. R. Co., 40 Mo., 151; 45 Mo., 137; Rose vs. Spies, 44 Mo., 20; 1st Nat. Bk. vs. Curie, 44 Mo., 91.)

“It would be manifestly unjust to characterize as negligence the act of yielding obedience to the requirements of the party inflicting the injury, and to hold as between the parties themselves, that it should deprive the party injured of all legal redress.” (McIntire vs. N. Y. Cent. R. R. Co., 37 N. Y., 287; the same doctrine is maintained in Penn. R. R. Co. vs. McCloskey's Admr., 23 Penn., St. 526.)

A. H. Vories, for Respondent.

I. The second instruction given for respondent did not take the case or facts from the jury, but left the jury to find specific facts, and if so found, then to declare that they amounted to such contributory negligence and want of ordinary care, that the verdict must be for defendant. (Redf. Railw., §§ 150, 330, 336; Shearm. & Redf. Neg., §§ 43, 46, 62, 64; Ginnon vs. N. Y. & H. R. R. Co., 3 Robertson, 25; R. R. Co., vs. Aspell, 23 Penn. St., 147, 150; Damont vs. New Orleans & C. R. R., 9 La., [An.] 144; Boland vs. Mo. R. R. Co., 36 Mo., 448; O'Flaherty vs. Union R. R. Co., 45 Mo., 70; Barton vs. St. Louis & I. M. R. R. Co., 52 Mo., 253; Ch. & A. R. Co. vs Randolph, 53 Ill., 510; Brown vs. Eur. & North. Am. Railw. Co., 58 Me., 384; Callahan vs. Bean, 9 Allen, 401; Lovett vs. Salem & S. D. R. Co., Id., 557; Porter vs. Harrison, 52 Mo., 524.)

NAPTON, Judge, delivered the opinion of the court.

The only question in this case is the propriety of the instructions given. The evidence is not preserved. The bill of exceptions merely states, that there was evidence by the plaintiff to prove the issues on his side, and by the defendant to disprove them. The defendant is proprietor of a street railway in the City of St. Joseph. The petition charges that the plaintiff's son, about 17 years old, took passage on the car destined for the crossing of 6th street, at or near the “Oregon House” on 6th street; that this was a point at which it was customary for defendant's car to stop, when a passenger so desired, and that it was its duty so to do; that the plaintiff's son, when he arrived at his point of destination, at the Oregon House on 6th street, and at a regular crossing of said street, requested and demanded of the conductor of defendant's car, to stop said car, so that the said plaintiff's son could get out; but that the conductor, carelessly, negligently, willfully and maliciously refused to stop said car, so that said Wyatt could get out, and at the same time recklessly, negligently, &c., well knowing the danger thereof, ordered him to jump from said car, while it was in rapid motion; that thereupon said Wyatt, the minor son of plaintiff, in obedience to the order of defendant's conductor, and after having repeatedly requested and demanded that said car should be stopped as aforesaid, after said request had been repeatedly refused as aforesaid, and it being imperatively necessary for said Wyatt to stop at the point aforesaid, & c., stepped or jumped from said car, using as much care and prudence as he could possibly command. It is further charged, that in consequence of this negligence, &c., on the part of defendant, said plaintiff's son was thrown upon his right knee, and so injured and bruised, &c., that amputation became necessary, &c. The answer denies these allegations and sets up new matter which it is unnecessary to notice.

The principal point in this case is presented by the 2nd instruction given for the defendant. That instruction is: “If the jury believe from the evidence that at the time said Benj. Wyatt received the alleged injuries, arising from his jumping from the car of the defendant, whilst it was in rapid motion, he was a young man or boy of the age of 17 years or over, and was possessed at said time of ordinary mental capacity, being neither an infant of tender years, an idiot, or insane person, then under the pleadings and evidence in this case the plaintiff cannot recover, and the jury will find for the defendant.”

This instruction was virtually a direction to the jury to find for the defendant, since the facts that the boy was 17 years old, and that he was of sound mind, were not disputed. The instruction declares as a matter of law, that if a young man 17 years old steps or jumps from a street car when in rapid motion, it is per se negligence, no matter under what circumstances it may have occurred.

It is obvious, that in regarding negligence as a question of fact, the circumstances under which the alleged negligence occurs will materially affect the question. The character of the vehicle from which a passenger alights, is one circumstance which would very much influence one's opinion, as to the prudence or want of prudence of the act; and many other circumstances, under which a person might jump from a carriage drawn by horses, or a car on a railroad drawn by horses, or a car drawn by a locomotive engine propelled by steam, would determine the propriety or prudence of the act. There may be alternatives presented, and a momentary decision required, in cases where the event only shows the wisdom or folly of the sudden resolution and act; and certainly there is a manifest distinction between railroad cars drawn by horses or other animals, and those propelled by steam engines. What might be well termed rapid motion of the former, would be a very low rate of speed in the latter, and the construction of the cars in street railroads, is essentially different from that of those drawn by locomotive steam engines, so far as the...