Senn v. Southern Railway Co.

108 Mo. 142

• Court: Supreme Court of Missouri
• Decided: October 15, 1891
• Status: Published

Opinion

Macfarlare, J.

This action was commenced for damages under section 2121, Revised Statutes, 1879, for the death of the minor son of plaintiffs, Christian Senn and wife, on account of alleged negligence of a driver of a street horse car on defendant’s road, in driving and managing the same. Plaintiff obtained judgment for $5,000, and defendant appealed. Since the appeal Mary Senn, the wife, has died, and the cause has been revived in the name of Charles Scudder, administrator. Defendant is a corporation owning and operating a street railway in the city of St. Louis.

The negligence charged was a failure of the driver of a car to observe the requirement of an ordinance of the city as follows :

“ The conductor and driver of each car shall keep a vigilant watch for all vehicles and persons on foot especially children, either on the track or moving towards it, and on the first appearance of danger to such persons or vehicles the car shall be stopped in the shortest time and space possible.”

It was charged, in substance, that Charles Senn, son of plaintiffs, between six and seven years of age, was driving his father’s cow across the track of defendant’s railway, on north Broadway, in the city of St. Louis, and the driver of one of defendant’s horse cars negligently failed to keep a vigilant watch for persons moving towards or upon the track, and negligently failed on first appearance of danger to the son of plaintiffs to stop the car, by reason of which their said son was knocked down and killed. It was also charged, in substance, that the death of plaintiffs’ son was caused by the driver of the car negligently and carelessly driving the team attached to said car, and thereby allowing said team to run against and knock their son down, and the car to run over him.

The answer admitted the incorporation of defendant, that plaintiffs were husband and wife; that Charles was their son and that he was a minor, but denied all other allegations. It also charged contributory negligence on the part of deceased.

I. It is insisted that the evidence fails to make out a case of negligence which should have been submitted to the jury. It must be conceded that the facts immediately connected with the accident are not made clear and satisfactory by the evidence. Though there were three eye-witnesses to the injury we only get the information from their testimony that the boy was tripped, or thrown down, by the mule on the east side. It is not shown how deceased approached the track, except in a general way that he was driving a cow from the west to the east side of the street. It does not appear whether he stopped on the track, or tried to run across .under the heads of the mules, or how he approached the track. On the question of contributory negligence it is not shown what the mental capacity and discretion of the boy was or what his experience in being about street cars had been, or what knowledge he had of their dangerous character. All those facts should have been shown as clearly as practicable to have given either court or jury information sufficient to enable them to form an intelligent opinion of the proximate cause of the accident. Still we think the evidence tended to prove the allegations of negligence contained in the petition. The car, drawn by two mules, was running south on Broadway street. Deceased with a companion was driving a cow from the west across the street. Two or three witnesses testified that the cow and the other boy had crossed the track, whether in front of or behind the car does not appear. Charlie, the deceased, in crossing was tripped by the east mule and thrown on the track, and the front wheel of the car passed over his leg. The driver testified that he saw neither of the boys until after the accident. There was also evidence which tended to prove that the attention of the driver was, at the time,' directed to some person standing on the west side of the street.

This railroad track occupied a public highway which was open to the use of all persons, including children. Aside from the duty enjoined by the ordinance, reasonable care required of the driver “to keep a vigilant watch for all vehicles and persons on foot, especially children, either on the track, or moving towards it,” and “ on the first appearance of danger to such persons” to use all reasonable efforts to avoid injuring them. A failure to observe these precautions would constitute negligence.

II. Within two or three minutes after the accident, and while the driver held the injured boy in his arms, Christ. Senn, the father, reached the place, and immediately accused the driver of careless driving as the cause of the accident. On the trial he was permitted to testify, over defendant’s objection, to having made this accusation. Complaint is made of this ruling of the court. There has been much said and written as to when and under what circumstances the declarations and admissions of an agent will bind the principal. It is generally agreed that they will only do so when the declaration and fact to be proved “ are so clearly connected that the declaration can, in the ordinary course of affairs, be said to be the spontaneous exclamation of the real cause. The declaration is then a verbal act, and may well be said to be a part of the main fact or transaction.” Leahey v. Railroad, 97 Mo. 167, and cases cited. The same rule is applied, upon the same reasoning, to the declarations or exclamations of an injured person which are explanatory of the cause of the injury. See review of authorities in Leahey v. Railroad, supra. It will be seen that the admissibility of such evidence depends necessarily upon the fact that the one whose declarations are sought to be proved had intimate connection with the transaction, which is the subject of the controversy. The declarations of one who had no connection with or knowledge of the transaction could not become a part of the transaction so as to make them admissible.

The witness himself testified that he did not see the accident, and had no knowledge of it until he heard the shouts, and saw the driver holding his boy in his arms. His declaration to the driver was simply an outburst of grief, and not a “spontaneous declaration of the real cause” of the injury about which he knew nothing. He was neither the agent of the defendant nor the person injured, nor a witness to the occurrence and was' moreover himself a witness on the trial. His declarations were clearly inadmissible. State v. Brown, 64 Mo. 371; State v. Sneed, 88 Mo. 138; State v. Elkins, 101 Mo. 351.

III. It is insisted that though Senn’s declaration, taken alone, may not have been admissible, it is so when considered in connection with the fact that the driver made no denial of the charge. A sufficient answer to that contention is, that the witness was not asked, nor did he testify, that the driver made no answer. The question was asked: “ What did you say to the driver ? I says to him that ‘ It was your careless driving,’ and took the boy and carried him into the house.” The next question was: “What then occurred? A. I sent for the doctor.” For all that appears the driver may have denied the accusation.

IY. We also think the court committed error in permitting witness Kunkel to give his opinion as to the distance m which a car could be stopped under the facts hypothetically stated to the witness. Before such opinions are admissible the hypothetical question should embody substantially all the facts relating to the. subject upon which the opinion of the witness is asked. The question asked the witness was as follows: “ Q. Mr. Kunkel, if the car is going at a slow trot down a grade of two to three feet to the block with a few passengers in the car, and the track is dry and the driver is standing at his post, and a boy is crossing the track in front of the mules, how far will the car go before the driver can stop it ? A. The car can be stopped in from twenty inches to two feet on a dry track.”

The evidence in this case shows that there are different kinds and sizes of cars, some drawn by one and some by two horses. That this was a two-horse car drawn by two mules. That there was only one passenger in the car, and it does not appear that the track was dry. The experience of the witness was principally in driving what they called a “bob-tail” car. Whether his opinion was predicated upon one kind or another cannot be known. His opinion was worthless and might have been misleading if given on a state of facts that did not exist. Before he could have given an intelligent opinion he should have been put in possession of all material facts, affecting the ability of the driver to stop the car, as they existed at the time. The discrepancy between the facts proved and admitted in the case, and the facts upon which the opinion was given, may have been very material.

It cannot be said that, because the driver never saw the boy on the track at all, and made no effort to stop until after the occurrence of the accident, the testimony of this witness was immaterial. If the accident could not have been avoided, after the danger became (apparent, then the negligence in not stopping the car could not have been the cause of the collision.

So the liability of defendant depends upon whether the car could have been stopped after the first appearance of danger, and it became important to know in what distance that particular car, at that place, with the condition of the track then existing, could have been stopped. We do not think this witness was sufficiently informed of the facts, as they were stated in the hypothetical question, to make his opinion admissible.

Y. In the course of the trial plaintiffs were permitted to exhibit before the jury the clothing worn by the boy at the time of the accident. It is insisted that the court erred in allowing this to be done. There can be no doubt that such evidence is always admissible when it tends to establish any controverted fact or issue. “This is, of all proof, the most satisfactory and convincing.” 1 Best on Evidence [Morgan’s Ed.] sec. 197 ; State v. Buchler, 103 Mo. 205; State v. Wieners, 66 Mo. 13.

We are notable to say that the condition of the clothing did not tend to' establish some disputed and material fact connected with the accident. It is true the injury and death therefrom were admitted, but the clothing showed indisputably the position in which the boy’s leg was placed when run over, and it may have tended to prove whether he was thrown upon the track by the mules, as contended by plaintiff, or was thrown down in an attempt to jump on the car, as was the theory of defendant. The admissions made by defendant were not sufficiently comprehensive to include every fact the condition of the clothing tended to prove.

VI. The validity of the ordinance which undertakes to establish a standard of care to be observed by street-car drivers, in running and managing the cars used in the streets of the city, is questioned by defendant on the ground that it is unreasonable and oppressive, and is not in harmony with the general laws of the state, as well as upon the ground that the city had no power to pass it. The objection urged is to that part of the ordinance which requires the driver “on the first appearance of danger” to children and others to stop the car “in the quickest time and space possible.” The same ordinance was before this court in Fath v. Railroad, 105 Mo. 537. In that case the ordinance was held valid on the ground that the railroad company obtained its right to use the streets of the city, under a contract by which it agreed to be governed by such ordinances .as were in force, or might thereafter be enacted for the regulation of such use. In this case the record shows no contractual relations between the city and the defendant railroad company, and for that reason the rule laid down in the Path case cannot be applied in this. Whether the ordinance, in imposing upon drivers of street cars a higher degree of care than that required by the rules of the common law, would be so unreasonable and oppressive as to render it invalid as a police regulation, we do not think it necessary to inquire in this case. The instructions under which the case was submitted to the jury only required of the driver that care which was imposed upon him as a common-law duty, independent of the ordinance, and wé are unable to see that defendant could have been injured by the introduction of the ordinance in evidence, though it may have been in part invalid.

As a retrial will be necessary, the pleadings can be amended, and the case tried in such a manner as to test the validity of the ordinance if the parties desire to do so. Reversed and remanded.

All concur.