Anna ex rel. Anna v. Missouri Pacific Railway Co.

70 S.W. 398, 96 Mo. App. 543, 1902 Mo. App. LEXIS 164

• Court: Missouri Court of Appeals
• Decided: November 11, 1902
• Status: Published

Opinion

GOODE, J.

The trial court excluded from the consideration of the jury all evidence tending to establish any act of negligence on the part of the defendant except that its servants in charge of the train omitted to stop the train as soon as possible after .they knew of the perilous position of the plaintiff, and as no question has been raised concerning the correctness of that ruling, we will assume it was correct in disposing of the appeal. The court must have thought the defendant ’s servants were innocent of blame in other respects, or that the plaintiff’s own carelessness so contributed to his being caught under the train as to shut him off from relief because of any negligent act of which the defendant’s employees may have been guilty except neglect to use proper measures to save him after they knew he was there.

The case stands before us, then, for decision on the conduct of the parties after the boy had lodged in the ditch or depression between the rails and the efforts made by the trainmen and himself to obviate á harmful result.

Did the court fairly present the behavior of both sides in the instruction given, so as to enlighten the jury about the issue and enable them to intelligently decide whether the plaintiff or the defendant’s servants, or both, did what was incumbent on them to do to prevent the■ plaintiff from being crushed?

The only negligent act of which the plaintiff is-accused in that emergency is that instead of lying still where the cars could not hurt him, he left that position of safety, crept onto a rail of the track and in consequence got his foot mashed. His counsel admits he did this, but contends that in law it was not a negligent act which will bar his recovery, considering the fright and confusion then affecting him and that, therefore, the court was not bound to leave it to the jury to say whether it constituted a defense.

We agree that the youth of the boy and his dismay and confusion in his terrible danger, place the degree of care he was bound to exercise below what is required of a person of mature years in a position of safety; but can not agree either that the law excuses him for not exercising any prudence whatever, or that evidence tending to show his behavior was negligent is lacking. As to the latter point, the fact that one or more cars passed over him while he lay where he originally fell, without hurting him, is evidence tending to prove he was negligent in moving while the cars were still passing.

The rule of law by which responsibility for injury to a person in a situation of danger like the one plaintiff was in is measured, is, that the individual thus exposed must use the care that an ordinarily prudent person of his years and capacity may be expected to use in a like situation. Klieber v. Railway, 107 Mo. 240; Twomley v. Railway, 69 N. Y. 158; Richmond, etc., R’y v. Farmer, 97 Ala. 141; Lincoln Rapid Transit Co. v. Nichols, 37 Neb. 302; Beach on Contrib. Neg. (3 Ed.), sec. 40.

The above rule is applied in most jurisdictions even when the plaintiff’s danger was due to the de^ fendant’s negligence, and is certainly applicable to this case in which the plaintiff’s danger was not thus produced, according to the theory on which the lower court submitted the case to the jury and as it is presented to us.

We .agree with the learned trial judge that it is immaterial whether the first instruction on contributory negligence was too general or not; because the instruction given by the court of its own motion attempted to cover the entire case and erroneously omitted the defense of plaintiff’s contributory negligence in moving from a place of safety to one of danger.

"We approve the order granting defendant a new trial and remand the cause.

Bland, P. J., and Barclay, J., concur.