Spencer v. St. Louis Transit Co.

GRAVES, J. Plaintiffs, husband and wife, sne for the alleged negligent killing of their infant daughter, Olive L. Spencer, by defendant. Olive L. was five years of age, and met her death by being struck and dragged by one of defendant’s street cars near the junction of Sidney street, Gravois avenue and Jefferson avenue, in the city of St. Louis, on October 18, 1904. Jefferson avenue runs north and south; Sidney street runs east and west, and Gravois avenue crosses both Sidney street and Jefferson avenue in a diagonal course. On both Jefferson avenue and Gravois avenue defendant maintained double-street-car tracks. The car striking the child was one going in a northeasterly direction on the south one of the two tracks on Gravois avenue. As acts of negligence, the petition charges: ‘ ‘ That the car which struck, knocked down and dragged said Olive L. Spencer was being operated as a street car by a motorman in the employ of the St. Louis Transit Company, -and that said motorman saw, or by the exercise of reasonable care might have seen said child approaching said track and in danger of being struck by said car, a sufficient length of time before the collision, as by the exercise of reasonable care and with the appliancés on hand to have so operated the car as to have xavoided striking said child, and to have so operated said car as to avoid after striking her of dragging her a distance of forty or fifty feet thereby causing her death; but, said motorman negligently failed to so operate said car after he saw or by the exercise of reasonable cafe might have seen her, so as to avoid said collision, but on the contrary, negligently allowed said car to collide with said child, and then negligently allowed said car to drag said child forty or fifty feet causing her death as aforesaid.” — 317 — In addition to the above the defendant was charged with having run its car at an excessive rate of speed, to-wit, fifteen miles per hour, in violation of a general ordinance which limited the speed to eight miles per hour. The Vigilant Watch Ordinance was also pleaded. It is also charged that a city ordinance relating to fenders on street cars had been violated, and further that the defendant failed to stop its car twenty feet to the west of the crossing on Jefferson avenue in violation of another ordinance. Answer was a general denial, to which was coupled a plea that the negligence of the mother, Laura E. Spencer, caused the injury and death of the child. Reply denied the new matter in the answer. Judgment went for plaintiffs in the sum of five thousand dollars, from which after all necessary steps were taken, the defendant duly appealed. Prom the evidence of the plaintiff, Mrs. Spencer, it appears that the father of deceased was an employee of defendant; that the mother had read the hook of rules and was familiar with the rule of the company which reads, ‘ ‘ Motormen will bring their cars to a full stop twenty feet from all street railroad intersections; ” that plaintiffs lived on the east side of Jefferson street within less than a block of Sidney street and to the south of Sidney street; that on the afternoon in question which was a clear, bright afternoon, Mrs. Spencer took the child, Olive, to a store on the northwest-corner of Sidney and Jefferson streets to make some small purchases for birthday presents, little Olive being five years of age upon that day; that after the purchases were made, the mother and child went east across Jefferson avenue to the corner of Jefferson and Gravois avenues, being then north of the tracks on Gravois avenue; at this point there was a crossing on the east side of Jefferson avenue which lead down to their home; when Mrs. Spencer in coming east from the store reached this crossing at the point above named, she — 318 — says she looked both to the east and the west and, seeing no ears, she took the little girl by the hand and started across, hut after taking a few steps the little girl jerked away from her and ran on ahead; that she looked up and saw a car approaching from the west on Gravois avenue, at about the intersection of the street car tracks on Jefferson and Gravois avenues; that she hollowed at the child and ran after her, and in trying to get to the child was herself struck by the car; that the last she saw of the child she was in the middle of the south tracks, and when the car was stopped she ran around the rear thereof to see if the child had gotten across, and started then to the front when some parties took her into a nearby drug store; she also testified that there were no wagons or other obstructions. By other testimony it is shown that the child was struck whilst on the crossing on the east side of Jefferson avenue; that Jefferson avenue is about sixty-five feet in width, with double street-car tracks therein; that the car ran from one to two car-lengths after striking the child; that it was going about fifteen miles per hour at the time; that it had not stopped on the west side of Jefferson avenue before crossing the tracks therein; that there was no sound indicating the application of the reverse prior to striking the child; that the accident occurred about five o’clock in the afternoon, at a time when there was considerable travel at this junction; that had the car been running at eight miles an hour it could have been stopped by the use of all the appliances therein within ten to twelve feet as given by one witness, and within ten feet to fifteen feet as given by another witness; that the car was being operated by the defendant company. The best detailed description of the accident is thus given by one witness: “Q. What did you see occur then? A. Why, by the time that I got across the tracks, about middleway between the curb and the car tracks, I heard Mrs. Spencer scream and I looked in the direction it came from — 319 — and I see a little child about five or six feet in front of the car and Mrs. Spencer making an attempt to run in after it to catch it, and about the time the car struck the little child it also struck Mrs. Spencer and knocked her down and knocked the little girl down and picked her up on the hack fender, that is, when the hack fender struck her it picked her up on it, and the car run about, I should judge, thirty-five or forty feet, and the little girl rolled off of the hack fender down in front of the fender and it just rolled her along right in front of the fender for about eight or ten feet, and she rolled right in under the fender and the car ran about six feet while she was rolling in under the fender to where it stopped. When the car stopped the little girl was right in front of the front wheel.” Plaintiff also introduced a part of section 1760, article 6, of the St. Louis Municipal Code, which reads: “No car shall he drawn at a greater speed than eight miles per hour.” They also introduced the Vigilant Watch Ordinance, so often quoted and mentioned in our cases. The evidence of one witness for the defendant tended to show that there was a high wagon passing toward the southwest; that the little girl checked up until the wagon passed and then ran behind the wagon across to and upon the street car tracks where she was struck and killed. The motorman testified that he met such a wagon there and that the little girl came from behind it and ran as fast as she could upon the track whereon the car was running; that he used the appliances and stopped the car as soon as he could which was within eight or ten feet of the point where He struck the child; that he saw the child some fifteen or twenty feet before she reached the track; and saw that she was running toward the track, and at once began to stop the car; that his car was only running seven to eight miles per hour; that he stopped his car within the space of twenty-five feet, on that occasion, and had — 320 — stopped it at that rate within that space on previous occasions; that the wheel of the car did not run over the child. By two experts the defendant shows that such a ear going eight miles per hour couldn’t he stopped with due regal'd to the safety of passengers within less than seventy to eighty feet. All the evidence shows that the car was going on a slight upgrade. Defendant’s evidence also tended to show that the fender was so constructed that if an object got onto it, it could not roll off; that the car was stopped west of Jefferson avenue to await the passage of a car on the Jefferson avenue line, and started up and ran across the Jefferson avenue track with the power off. Defendant also introduced an amended ordinance by which it was shown that the speed limit was ten miles an hour instead of eight miles, as by the old ordinance prescribed. In rebuttal the plaintiffs showed that there was no wagon there at the time and nothing to obstruct the view of the motorman. That there was no stop west of Jefferson avenue. This sufficiently states the facts shown. Points made will be noted in the course of the opinion. I. Instruction No. 1 given for the plaintiff .reads: “If the jury find from the evidence that on the 1.8th day of October, 1904, the defendant St. Louis Transit Company was a carrier of passengers by street railroads propelled by electricity and that it used the railway and car mentioned in the evidence for such purpose; and if the jury further find from the evidence that on that day Robert C. Spencer and Laura E. Spencer were the farther and mother of Olive L. Spencer, a minor, aged five years, and that the latter was born in lawful wedlock of plaintiffs; and if the jury find — 321 — from the evidence that said Olive L. Spencer on the 18th day of October, 1904, while crossing the double street-car tracks of defendant, on Gravois avenue, was struck and knocked down by the electric street car mentioned in the evidence, at the eastern crossing of Jefferson avenue, in the city of St. Louis; and that after being so knocked.down, she was dragged by such car about fifty feet, thereby causing her death; and if the jury further find from the evidence that said Olive L. Spencer was unmarried and left no- child surviving her; and if the jury further find from the evidence that on said occasion a motorman in the employ of the St. Louis Transit Company was operating said car for said St. Louis Transit Company; and if the jury further find from the evidence that such motorman so operating said car saw, or by the exercise of reasonable care would have seen said child approaching the track, and in a dangerous situation, a sufficient length of time before she was struck by said car, as that, by the exercise of reasonable care, with the appliances at hand, and with due regard to the safety of passengers, he could and would have so operated said car, as that after she was struck he would have averted the dragging of her such distance as resulted in her death, if the jury find she was so dragged, and that such dragging caused her death, then the jury should find for the plaintiffs and against the defendant St. Louis Transit Company, unless they further find that there was negligence on the part of such child or of plaintiffs directly contributing to the death of said child.” This instruction is challenged for two reasons, as speaks defendant’s brief: “First. Because the jury was authorized to return a verdict for plaintiffs if they believed that after deceased was struck by the ear she was dragged to her death by the motorman’s failure to stop the car quick — 322 — er, while the evidence fails' to show that the dragging contributed in any degree to her death. “Second. Because, even though she was dragged to death, yet there is no evidence that it could have been stopped any sooner than it was stopped.” We cannot concur in defendant’s first assignment of error as to this instruction. The evidence tends to disclose that the child was struck and picked up by the fender and that the car ran a distance of forty to fifty feet on a slight upgrade.thereafter. That during such time the child fell from the fender and when found was under the car with her head upon the rail, with the wheel of the car up against her neck, but not upon it. It is not shown that she was mutilated, but was dead when removed, and from the evidence the jury might have well found that she was not actually killed by the impact of the first blow to her little body, but received the death-dealing wounds after she fell beneath the fender and was being dragged along thereunder, or they might have as readily found that the first blow was sufficient to produce death. There were sufficient circumstances in evidence upon which to submit this view to the jury. Nor do we think the language used in the Masterson case, 204 Mo. l. c. 520, 521, is fatal to this instruction under the facts of this case. What was there said was in the light of the facts of that case, and the discussion considers other matters not apparent in this record. Nor do we think the second contention is tenable. The defendant’s motorman says his car was going only seven or eight miles per hour and he says that he saw this child fifteen or twenty feet from the track and running toward it, and that he then began to stop. He says he stopped within twenty-five feet, although other witnesses for defendant say the car could not be stopped in less than seventy or eighty feet. Plaintiff’s witnesses say that the car could have been stopped ydthin ten to fifteen feet. The question therefore be — 323 — came one for the jury to determine from this conflicting proof. It is evident that he had much more than fifteen feet within which to stop, if the child had to run even fifteen feet to the point of collision from the point where he first saw her. A little five-year old tot would not travel this fifteen feet within the time that a street car would go the same distance going at a rate of seven or eight miles per hour. Even grant it that by reason of the angle of the tracks at that point the child would he running, in going south, somewhat toward the car which was coming northeast, yet there are ample circumstances in the record tending to show that the motorman had much more than fifteen feet within which to stop his car after he says he saw the child running to the danger point. To our mind, the instruction was well enough under the facts of the case. II. Instruction numbered 2 for the plaintiff, reads thus: “The jury are instructed that at the time when and the place where said Olive L. Spencer was struck by the car and dragged and killed, the law imposed upon the motorman, while running said motor car, the duty to keep a vigilant watch for all persons on foot, and especially children, either on the track or moving toward it, and on the first appearance of danger to such child, to stop the car within the shortest time and space practicable, consistent with the safety of passengers. And if the jury find from the evidence that the motorman operating said car failed to perform such duty, then such failure was negligence on the part of the St. Louis Transit Company; and if the jury believe from the evidence that in consequence of such negligence above specified the death of said child was caused, your finding should he for the plaintiffs, unless you find from the evidence that plaintiffs, or one of them, or said child was guilty of negligence which directly contributed — 324 — to the death of said child; and the burden of proving contributory negligence on the part of said child or plaintiffs rests on defendant, and unless defendant has proven such contributory negligence by a preponderance of evidence you cannot find for the defendant on that ground.” It is urged that this instruction “is erroneous because it submits a question of law to the jury and is misleading. ’ ’ The instruction is not faulty. The first part recites the duty of defendant under the Vigilant "Watch Ordinance in evidence, and then declares any failure to perform that duty was negligence, and that if the child’s death was the result of such negligence the plaintiffs were entitled to recover if they themselves had not been guilty of negligence. The only questionable thing we see in this instruction is in that part which submits to the jury the contributory negligence of a five-year-old child. An instruction of this character was approved in Weller v. Railroad, 164 Mo. l. c. 192 and 205. Neither is such an instruction misleading. The ordinance itself is a reasonable exercise of the police power, and its violation negligence per se. This contention is ruled against defendant. III. Plaintiff’s instruction numbered 6 is criticised by the defendant. This instruction reads: “If the jury find from the evidence that Mrs. Spencer took the same degree of care of the child on the occasion in question as a reasonably prudent person ordinarily would under the same or similar circumstances, then she was not guilty of such contributory negligence as would defeat this action. And even if the jury should believe that she did not exercise reasonable care, in that the child escaped from her grasp and ran across the railroad track as shown in the evidence, yet this would not defeat plaintiff’s recovery, if you believe — 325 — that the motorman after seeing the child either on the track or moving toward it, and on the first appearance of danger to snch child failed to stop the car within the shortest time and space practicable, consistent with the safety of the passengers on hoard the car, and that such failure by said motorman occasioned the death of said child.” We see no error in this instruction. It reiterates the well recognized humanitarian rule. Besides the defendant recognizes in the latter clause of its instructions numbered 2, given by the court, the same doctrine. Nor was there error in refusing defendant’s demurrer to the evidence in this case. There was ample evidence upon which to submit the case to the jury. We have gone through the numerous instructions given and refused, and are of opinion that the case was fairly submitted, and well tried throughout. Further details will serve no good purpose. The judgment should be and is affirmed. All concur.