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to call him I found he was down on the “I have never heard Mr. Hodgson or anybody ground. I didn't know where he was. I nev- tell Edna to leave the building." er did find out. My little brother called me to ! On recross-examination, the witness stated: come down, and I went through the space again | "At the time Mr. Hodgson would tell us to go between the second floor and the elevator. | out, I was not in the building. Edna was not * s * My little brother was standing right in the building. She was never around there by the elevator when he called me and told me when Mr. Hodgson would order me to get out. that Hodgson had gone up to the second floor. I did not tell you that just now." I don't know how long it took me to find him Nine of the employés of the defendant testiwhen I started upstairs, or how long it would fied that plaintiff was told by Hodgson and Mctake to run the elevator from the ground floor Ginnis to leave the barn, some of them saying almost to the third floor. When I found that it was frequently done. Several of the plainMr. Hodgson had gone up the chute to the tiff's neighbors testified to the same effect. second floor I pulled the wire again with my Hodgson testified that on one occasion he leg over the bar. I knew that if I pulled one threw a quarter to some children and told them wire that it would send the elevator up, and to buy a watermelon and get away from there. if I pulled the other wire it would send it down. He denied that he ever requested plaintiff to * * * I was sitting on the elevator with my answer the telephone or operate the elevator, leg over the bar when I started up, and the side but testified that he told her many times to of my leg rubbed the bar. When I got up to get out of the building, and that on one or two the second floor I stepped on the elevator, and occasions he put her out. that is the first time in over 100 times that I There are two counts in the petition. The operated the elevator that I had ever gone up first charges common-law negligence in emwith my leg over it. When I got up to the ploying the plaintiff, knowing that she had not second floor the outside of my left knee was sufficient age, experience, judgment, and skill hurt. I had not changed my position at all. | to run the elevator. That count contained the I sat right on the elevator going up. My leg following: "That on August 19, 1909, defendjust from the knee was hanging over. I don't l ant's foreman. then in charge of said building know how it was done, but it scraped through. for defendant, requested plaintiff to answer My knee was struck, all scraped on the outer calls on said telephone and to notify him in case side. I just had one leg over the elevator. My of a call on said telephone, and promised plainlittle brother stopped the elevator. I could not tiff to pay her a compensation in money if she do anything to stop it. He just pulled the wire

would perform said service, whereupon plainthat stopped it. He is 11 years old in May. I tiff told said foreman she would perform said I don't believe I ever saw him operate the ele- service and undertook at once, in pursuance of vator before. I did not tell him how to stop said request, to answer said telephone and noit. He had seen me and all of them operate tify said foreman of said calls, and on said day it, and just picked it up and could stop it very after so requesting plaintiff to answer said tel: easily. I screamed, but that did not bring him ephone said foreman ascended to some floor of up to stop the elevator, he was already at the said building above its first floor, and before so bottom. When I was going up, he was stand ascending informed plaintiff that he was going ing at the wall, on the west side of the eleva

up in said building, and directed her that in tor, and when I screamed he let the elevator

case a call should come over said telephone go past the second floor.

while he was there for her to ascend in said John Reynard testified for the plaintiff: “I

building and notify him of said call, and negliam 12 years old, and I live at 407 South Fif

gently directed her that in such case for her to teenth street, across the street from the Wells

so ascend by means of said elevator, and negliFargo Building. I was around that building in gently directed her to use and operate said eleAugust, 1909, before this little girl got hurt. vator for such purpose. That on August 19, I remember when she got hurt. I have seen 1909, after said foreman had so ascended, and her in the office answering the telephone, about while he was in some part of said building twice. I do not know exactly when it was. It above its first floor, a call came over said telewas near the time she got hurt; it was before phone, and plaintiff immediately, in pursuance that. Mr. Hodgson was upstairs when the tel of the said request and directions of said foreephone rang, and she went to the chute and man, attempted to find and notify him of said called Mr. Hodgson and he came down; I do

call, and for the purpose of finding him to so not know what he did when he came down; I notify him, plaintiff got on said elevator and left the stable. On the other time that she an operated it so as to cause it to ascend with her swered the telephone I did not see her call any | thereon from said first floor. That on August one. It was about six weeks before she got | 19, 1909, by reason of the negligence above hurt that I saw her answer the telephone, when mentioned of said foreman, while, as aforesaid, she called Mr. Hodgson."

said elevator was ascending with plaintiff thereOn cross-examination the witness testified: on, her left leg and knee, because of her said "The time I heard her call Mr. Hodgson was lack of sufficient age, experience, skill, knowlabout six weeks before she got hurt, and that edge, capacity, and judgment to use or operate time she went to the chute to call him. Edna said elevator with reasonable safety to herself, and the other children and I living there in the or to perceive or understand the danger to her neighborhood used to go in the building every arising from her operating or using said elevaonce in a while. I did not play around there tor, were caught between said elevator, while very often. Mr. Hodgson used to tell we chil- it was so ascending, and the second floor of dren to get out of there once in a while. About said building, and thereby crushed and injured." six weeks before Edna was hurt, when she The second count was based on section 1723 called him, I did not wait until Mr. Hodgson of the Revised Statutes which forbids the emgot down before I went away from the build-ployment of children under 16 years of age "in ing. When I found Mr. Hodgson was going to any capacity whatever in operating or assisting come down I got away from the building. Ito operate any passenger or freight elevator." had heard Mr. Hodgson tell all of us children Upon the trial and after the close of all of that played together to get away from the build- the testimony in the case the court below gave ing. I had played with Edna around the build-to the jury, at defendant's request, an instrucing. I had heard him tell all of us to get away tion in the nature of a demurrer to the evifrom the stable very often. He had told us dence on the second count of the petition. children about five times within a month or Thereupon plaintiff took a nonsuit as to said two before Edna got hurt to get out of the second count of her petition, with leave to move building; we might get hurt. The other time to set the same aside, which without success I heard Edoa answer the telephone, she did she subsequently did. not call anybody."

At the instance of the defendant the following On redirect examination the witness stated: instruction was given: "The burden of proving

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that defendant was negligent as charged in this I error in sustaining a demurrer to the evicase, and as submitted by the instructions dence on the second count. herein, rests upon the plaintiff, and, if plaintiff

II. As a preface or foreword I may say has not proven by the preponderance of the evidence that defendant was negligent in the that the case upon the whole does not impress manner so stated, and that such negligence was me as having any real justice or merit in it. the sole cause of plaintiff's alleged injuries, I so I find it difficult to approach it equitably. then your verdict must be for the defendant."

Some such impression was lately made upon The above statement which but slightly

the mind of my learned Associate, Graves, J., and immaterially varies from that made by

lepy by the facts in the case of State v. Long, 165 ROY. C.. in Division 2, will, we think, bels. W. 748. As the testimony impresses me, found sufficient to make clear the points dis- I there is an almost palpable inference de

there is an almost palpable inference derivacussed in the below opinion.

ble from it that the truth lies in the view W. E. Knowles, of E. St. Louis, Ill., and that plaintiff was hurt while engaged in medEarl M. Pirkey, of St. Louis, for appellant. dlesome mischief solely. W. F. Evans and E. T. Miller, both of St. [3] The discussion here is touching the Louis, for respondent.

facts as to the common-law negligence set up

in the first count, on which the case was sent FARIS, J. (after stating the facts as above). to the jury. The plaintiff was hurt on August [1, 2] I. Plaintiff complains of the act of the 19, 1909. She was on that date 14 years, 842 court below in modifying an instruction offer-months, old. She says she had been operated by her, by inserting therein sua sponte, the ing this elevator for some three months. It words, "and that when she was injured she was operated by two wires (wire ropes, she was exercising ordinary care as defined by clearly means), one of which was pulled to other instructions," as also (and one objection ascend and the other to descend. She learnis the corollary of the other) for that the į ed, she says, in a very short time how to court gave an instruction at defendant's re- operate it. quest, submitting to the jury the theory of "From that time on," to quote her own tes. plaintiff's contributory negligence. Contribu- timony, "to the time I was hurt I operated the tory negligence was not pleaded by defendant.

elevator by those wires at least 100 times.

* * * I never before this time sat down on To render it available as an affirmative de- , the elevator; that was the first time. * fense, it must have been pleaded. There is ! I knew there was a crack between the south

I no doubt that the learned trial court fell in- edge of the elevator and the second floor.

had seen it often as I went up by it. It was advertently here into an erroneous incon- light at the time I was operating it." sistency. If the proof of plaintiff showed

į In her direct examination, as to the twoher contributory negligence to an extent bar- ! .

! inch space between the edge of the second ring recovery as a matter of law, then such

floor and the outer edge of the elevator, she negligence was available to defendant here i,

says: even though not pleaded. Schlereth v. Rail

“The elevator does not fit close against the road, 96 Mo. 514, 10 S. W. 66; Collett v. Kuhl

second floor. There is a space between them; man, 243 Mo. 585, 147 S. W. 965. In such I could not tell exactly just how wide it was. case the defendant's demurrer to the evi. It looked as though it would be wide enough

for my leg to go through without hitting or dence of plaintiff should have been sustained. to

· touching the floor at all.White v. Railroad, 250 Mo. 476, 157 S. W.! The closing words of the above excerpt, 593. A submission to the jury of the issue of

which we italicize in order to emphasize what plaintiff's contributory negligence when no

we are next to say, bring this case in legal such defense was made in the answer was

effect on all fours with the facts in the case clearly erroneous and reversible error, unless

of Henry v. Railroad, 141 Mo: App. 351, 125 we can find from the whole evidence of plain

S. W. 794, where as the court finds and says, tiff that she herself shows her own contribu

the 14 year old boy who was hurt knew the tory negligence to an extent which, as a

size of the aperture through which in revolvmatter of law, forbids a judgment in her fa

ing the turntable his legs must pass, and invor. Keitel v. Railroad, 28 Mo. App. 663;

tended to draw his legs out of danger, but, Schultze v. Railroad, 32 Mo. App. 448; State

neglecting to do so timely, was caught and ex rel. v. Hallen, 165 Mo. App. 438, 146 S. W.

his leg crushed. Here the plaintiff did not 1171; White v. Railroad, supra; Collett v.

intend to draw her leg out of the way, but, Kuhlman, supra. Manifestly we ought not

knowing the size of the aperture from hav. to reverse a case if there be no case, that is,

ing seen it at least, we infer from her testiif there be no sufficient proof to make a case

mony, a hundred times, she merely relied on (section 2082, R. S. 1909; Moore v. Railroad,

ber belief that her leg could safely pass 176 Mo. 545, 75 S. W. 672), even though de

through this space, and was on this account fendant, satisfied, as it might well have

caught and hurt. been, with its victory below, has not ap

In the Henry Case, supra, at page 357 of pealed. Section 1850, R. S. 1909; Turner v.

141 Mo. App., at page 796 of 125 S. W., Judge Anderson, 236 Mo. 523, 139 S. W. 180. We

Ellison, who wrote the opinion of the court, will next, then, examine whether there was

said: sufficient evidence to make out a case for

"The situation thus described, leading plainplaintiff upon the first count of her petition.

int of her petition. | tiff to his injury, is one that should have reaWe lay by for subsequent discussion alleged sonably been avoided by a youth of fewer years

169 S.W.-8

* in any

ca

and of immensely less experience than he. the space in the elevator shaft between the Why he did not remain on the ground when edge of the elevator platform and that of the . he quit pushing on the lever is not to be ac

second floor. counted for by his youth, for such a boy as he

She thought it would safely would know that that was the prudent and pass, or, as she expresses it: natural thing to do, and such as he, in like "It looked as though it would be wide enough situation, must be held by the courts to know for my leg to go through without hitting or the probable consequences. Keeping in mind touching the floor at all.' that we are dealing with one of his age, and his experience also, yet we can conclude but

If the deceased boy in the McGee Case, suone thing consistent with any degree of reason pra, had but lived to testify that he saw the and that is that he seated himself on the table, train coming, but believed he could beat it intended to draw up his legs when he got to the point of contact, and did not do it. An ad- be as strong a case forbidding recovery as is

over the road crossing, the latter case would ditional suggestion would seem to bar his recovery. Conceding his youth and lack of judg- this one. Therefore, as upon this count the ment to the full of the argument in his behalf, verdict of the jury was for the right party, it yet he testified that he saw his danger, but thought his legs would not be caught. Then he makes no difference whether the court erred discovered they would be and began to draw or not in giving to the jury instructions inthem up, succeeding with one, while the other jecting into the case an issue not pleaded. was caught between the ends of the table and Hurck v. Railroad, 252 Mo. 39, 158 S. W. the spur rails. he could get one leg up into safety, he could not | 581; Trainer v. Mining Co., 243 Mo. 359, 148 have gotten both, since they could have been S. W. 70, Ann. Cas. 1913C, 919; Quinn v. raised at the same time, either as he sat, or Railroad, 218 Mo. 545, 118 S. W. 46. We disby throwing himself over backwards onto the table. It seems to us that the effect of plain- allow this assignment of error. tiff's position approaches the point of judging III. What we have said in the preceding him as an inanimate body, or if not that ex- paragraph applies only to the first count; treme, as a body bereft of reason.'

that which charges common-law negligence. Likewise in the case of McGee v. Railroad, Plaintiff contends that defendant through its 214 Mo. 530, 114 S. W. 33, a case wherein the stable foreman, Hodgson, violated the proviparents of a deceased boy 13 years old were sions of section 1723, R. S. 1909, then in denied recovery on the ground of the con- ; force, but since repealed by the act of 1911 tributory negligence of the latter as a matter | (Laws 1911, p. 132). The applicable part of of law. Discussing the latter case it was said the above section in force when the injury by Lamm, J., who delivered the opinion of happened is thus written in the statute: the court:

“Sec. 1723. No child under the age of 16 "When an issue of fact is framed and put to years shall be employed a jury on the question of the negligence of a pacity whatever in operating or assisting to minor, the general rule is to so frame the in-operate any passenger or freight elevator." struction as to graduate the degree of care demanded of a child to his age and capacity.

There were no provisions in the act creatThat rule requires that a child should be ing any express civil liability by reason of judged as a child, and not as a man. But the violation. By a subsequent section the violarule does not mean that the question is always tion of the act was made a misdemeanor, to be submitted to a jury, Children may be declared as a matter of law non sui juris at both in the parent or guardian who permitcertain tender years and with certain infantile i ted such child to be employed in the forbidjudgments. Then, again, they may be de- den occupations, and in the employer who clared sui juris as a matter of law when their employed such child, and fines were providage, capacity, and the circumstances under which they act are all considered. It may be ed to punish both such violators. taken as the most enlightened and accepted If we shall find from the facts that the doctrine in the case of infants that generally plaintiff was employed “in operating or asthe question of their contributory negligence is one for the jury. But it is not the accepted sisting to operate” the freight elevator in doctrine that it may not, under given circum- defendant's barn, then we may inquire from stances, be dealt with as a matter of law. If the decided cases, having brought the case the facts are few and simple, devoid of confu- , within the statute, whether such act of desion and complications, and if the danger to be avoided is so apparent as to be within the fendant perpetrated through its sta foreeasy comprehension of a boy of 13 years of man, Hodgson, was: (a) Negligence per se age, if that boy is shown to be of bright intel- | (Steel Car Forge Co. v. Chec, 184 Fed. 868, 107 ligence and of a judgment training him to cau- c. C. A. 192; Scalley v. Garratt, 11 Cal. App. tion and care in the matter in hand, we say, all these things being admitted, then there is no 138, 104 Pac. 325; Casperson v. Michaels, reason why the judge on the bench may not, 142 Ky. 314, 134 S. W. 200; Hankins v. as a matter of law under the facts of the given Reimers, 86 Neb. 307, 125 N. W. 516; Stehle case, declare there could be no two opinions among reasonable men about the negligence of

V. Automatic Machine Co., 225 Pa. 348, 74 such a boy measured by the standard of an or Atl. 215, 133 Am. St. Rep. 844; Sharon v. dinarily prudent boy. A boy of that age Winnebago Furniture Co., 141 Wis. 185, 124 knows, as well as an adult, that a locomotive N. W. 299; Kirschner v. Iron Clad Mfg. Co., must follow the rails, and that it cannot run around him or avoid striking him if he is on 134 App. Div. 144, 118 N. Y. Supp. 823); (b) the track and gets in its way.'

whether it foreclosed to defendant ordinarily Here in the instant case the plaintiff knew the defense of contributory negligence (there and fully appreciated the danger. She de was no such plea here however) (Strafford v. liberately hung her leg over the edge of the Republic Iron Co., 238 nl. 371, 87 N. E. 358, elevator platform, and knowingly experiment- 20 L. R. A. (N. S.) 876, 128 Am. St. Rep. 129; ed to see whether her leg could go through | Marquette Coal Co. v. Dielie, 208 Ill. 116,

70 N. E. 17; Sullivan v. Hanover Cordage, which is denounced in the statute, as upon Co., 222 Pa. 40, 70 Atl. 909; Lenahan v. a rock. Not of course in the sense that a Pittston Coal Co., 218 Pa. 311, 67 Atl. 642, conviction must first be had, but in the sense 12 L. R. A. (N. S.) 461, 120 Am. St. Rep. 885; | that if the facts in the case fall short of beInland Steel Co. v. Yedinak, 172 Ind. 423, 87 ing sufficient to make out any criminal liaN. E. 229, 139 Am. St. Rep. 389); or (c) | bility, they likewise ought to be insufficient to whether it was merely an act of negligence make out any civil liability. in the master to go to the jury, leaving open In the case of Fortier v. The Fair, 153 Ill. as a defense the plea of the contributory neg. App. 200, it was held that the fact that a ligence of plaintiff, if any, to be passed on child under 16 years of age was required, by a jury (Sterling v. Union Carbide Co., 142 in the course of his employment, to ride up Mich. 284, 105 N. W. 755; Woolf V. Nau- and down upon an elevator once or twice a man Co., 128 Iowa, 261, 103 N. W. 785; day could not be deemed necessarily and as Smith v. National Coal Co., 135 Ky. 671, 117 a matter of law to constitute it an employS. W. 280; Bromberg v. Evans Laundry Co., ment dangerous to life and limb within the 134 Iowa, 38, 111 N. W. 417, 13 Ann. Cas. 33; meaning of a statute prohibiting such emPerry v. Tozer, 90 Minn. 431, 97 N. W. 137, ployment. 101 Am. St. Rep. 416; Rohn V. Standard While it is true that the holdings are pretOptical Co., 110 App. Div. 501, 96 N. Y. Supp. ty unanimous that if a child within a pro1080; Lee v. Sterling Silk Co., 134 App. Div. hibited age be employed in a forbidden work, 123, 118 Y. Y. Supp. 852; Berdos v. Tremont the unlawful employment is to be regarded Mills, 209 Mass. 489, 95 N. E. 876, Ann. Cas. in law as the proximate cause of the injury 1912B, 797; Woods v. Paper Co., 167 Mich. (Sharon v. Winnebago Furniture Co., supra; 514, 133 N. W. 482).

Casteel v. Pittsburg, etc., Brick Co., 83 Kan. If it was negligence per se, if it fore- 533, 112 Pac. 145), and that the finding of closed the defense of contributory negligence, such unlawful employment establishes the or if it was evidence of common-law negli- necessary causal relation between the disgence, it was error to sustain the demurrer obedience of the statute and plaintiff's inof defendant to the second count of plain- jury, even though when injured plaintiff was tiff's petition, provided the facts of the alleg- not presently engaged in the duties of the ed employment as shown by the testimony of forbidden employment. But in the instant plaintiff bring the defendant within the let- case the employment (granting, as we do, ter of the statute.

grudgingly, but as in law we must, that any (4) But a serious question in limine thrusts such existed) to answer the telephone was itself into the case here, that is: Was there not unlawful. If plaintiff had been employed causal connection between plaintiff's employ- to operate the elevator, and had been hurt ment to answer the telephone and the identi. while answering the telephone, the causal recal use of the elevator therein, so as to en-lation of the cases last supra would then able us to say she was employed to operate have been present, according to these cases. the freight elerator within the purview of These latter cases, however, are the very conthis statute? We think not. This is a penal verse of the instant case; they are so held, statute, penal as to the parents of plaintiff and also they hold that an opposite state of as well as to Hodgson and the defendant. It facts would not produce civil liability. Casis fundamental that penal statutes are to be person v. Michaels, 142 Ky. 314, 134 S. strictly construed. If Hodgson, or the de- / W. 200; Unnewehr Co. v. Standard, etc., Ins. fendant, or the mother of the minor plaintiff, Co., 176 Fed. 16, 99 C. C. A. 490; Steel Car had been prosecuted for the forbidden mis- Forge Co. v. Chec, 184 Fed. 868, 107 C. C. A. demeanor of employing the plaintiff to oper-192; Norman v. Coal Co., 68 W. Va. loc. cit. ate a freight elevator, could a conviction be 109, 69 S. E. 857, 31 L. R. A. (N. S.) 504; sustained against eitber one of the three up- Revis v. Railroad, 147 1l. App. 116. on the testimony in this record? Did either In the Casperson Case, supra, at page 317 one or all three of these persons violate this of 142 Ky., at p. 201 of 131 S. W., it was said: penal statute as to any employment of this "It is argued that appellant had the right to girl? If they did not, how can this case fall employ appellee in the laundry, just so she within the purview of section 1723? Is it was not put to work at any of the machinery

therein used; that as she was injured at a part not a coudition precedent to any actionable of the machinery where she was not employed liability under this section that there must to work, and at a time when she was not acfirst be a violation thereof? There is not a tually engaged in work, the case is just the word in it as to its violation producing any towels, an employment attended by no danger,

as if she had been employed to mark liability other than the criminal one; if and had gone into the machinery room and there were, then the civil liability might been injured in the same manner; that if that be independent and not interdependent. If be true her right to recover does not depend there is a civil liability, therefore, such must upon the statute, and her case should be con

sidered from a standpoint entirely independent arise from an antecedent criminal infraction. of the statute; and, when so considered, her It is criminal liability plus civil liability, and own evidence shows that the danger of placing by its terms in reason cannot be civil liability her hand on or near the drum was so obvious minus criminal liability. The civil liability er years ought to have known and appreciated

and apparent that even a child of much tenderis built upon the misdemeanor in the case, and the danger. While we appreciate fully the force

same

of appellant's contention, we think the differ-, keep the injured child away from a dangerence between the supposed case and that at ous but alluring instrumentality, negligently bar consists in this in the supposed case maintained by defendant, some basis might there would be no violation of the statute, and therefore, no right of action could be predicat exist for the contention of plaintiff.

But ed on the statute; in the case at bar, however, here one phase of the case, that of liability appellee was employed and put to work at the bottomed on the violation of a penal statute, mangle in violation of the statute. She was actually injured by the mangle at which she connotes as an element, the permission of the had been put to work."

person in control of the child. The discussion of this matter of causal Other contentions made are fully disposed connection for damages arising from the of by way we say above. It results that, in alleged violation of a penal statute is like our view, the judgment here was for the wise ably handled in the case of Norman v. right party and ought to be affirmed. Let Coal Co., supra, at pages 408, 409, of 68 W. this be done. Va., at page 858 of 69 S. E., where it was said:

LAMM, C. J., and GRAVES, BOND, and "The true question to be determined in an WALKER, JJ., concur. WOODSON, J., conaction based upon a failure to obey a statute curs in separate opinion. like the one under consideration is: Did the

BROWN, J., disunlawful employment cause the injury? The

sents. trial of the case must be guided by this question. If the injury complained of is a natural and

WOODSON, J. I concur in the result probable consequence of a violation of the statute, then that violation is correctly taken as reached in the majority opinion in this case, the proximate cause of the injury. If the very but am unable to agree in the construction injury has happened which was intended to be placed upon section 1723, R. S. 1909, which prevented by the statute law, that injury must be considered as directly caused by the non

provides that: observance of the law. But if the injury is

"No child under the age of sixteen years shall one that happened by causes independent of be employed

in any capacity whatthe violation of the statute, it is not actionable ever in operating or assisting to operate any on the basis of that violation. If an interven- passenger or freight elevator." ing event against which the statute evidently I believe this statute says what it means, did not intend to provide, and the appearance and means what it says; and, being constituof which was not anticipated by the spirit and purpose of the act, has in fact caused the in- tional under the repeated rulings of this and jury, that event is plainly the proximate cause.' various other courts of last resort throughout

We conclude that the learned court nisi the Union, involving similar statutes, theredid not err in sustaining the demurrer of fore the defendant had no legal right to emdefendant to the evidence adduced on the ploy the plaintiff in any capacity to operate second count, by reason of the fact that or to assist in the operation of the elevator such evidence did not show a causal connec- mentioned. If that was all there was to tion under the terms of a penal statute for this case, I would be in favor of a reversal. the injury of plaintiff. We need not there Because of the individual hardship flowing fore, this view considered, determine whether from this class of legislation, in particular a violation of such a statute as that under cases, this and other courts have departed discussion is negligence per se, or whether from the letter and even the spirit of this the violation thereof forecloses the defensive class of legislation, thereby hoping to do jusplea of contributory negligence or not leav- tice in the particular case, not foreseeing the ing all such points open for discussion when great injustice and complications that would they shall become live ones.

naturally arise by such unwise departure. IV. Having reached the conclusion noted For instance, in the case of Morgan v. Railin paragraphs II and III, supra, other er way Company, 159 Mo. 262, 60 S. W. 195, unrors strenuously contended for become imma- der the plea of natural justice, section 2611, terial and wholly indecisive of this case. R. S. 1889, and similar statutes in other For example, plaintiff contends that the ad- states, regarding trespassers upon railroads, mission of evidence that defendant had no-designed to protect life and limb by protified the mother of plaintiff to keep her hibiting every one, except the employés of away from the stable of defendant was error, the company, from being upon or walking for that plaintiff at her own suit is not bound along the tracks of the railroad company, by the negligence of her mother.

We con was practically repealed because of the cede the rule of law contended for by plain- strong desire upon the part of this and other tiff in a proper case, but are not able to see courts to measure out justice in an individual its applicability to the facts here. At least case, which was done at the great cost of one-half of the negligence here complained the repeal of that humane statute intended of is the alleged employment of plaintiff by to protect all from personal injuries, as well defendant in a forbidden capacity. The mere as to give the trains of the company a clear request made to the mother of plaintiff, to and free right of way over their own tracks, keep her away from the stable is adventi- and not to be hindered and delayed by trestious, and in no way touches or materially af- passers, or other persons who had no more fects the latter phase of the case. If this legal right to be there than a burglar has in had been a turntable case, or a case wherein my house, and from this breaking down of the mother of plaintiff had been asked to that statute, the last chance rule, or the so

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