author: VALLIANT, J.

text:
    HOLMES et ux. v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
    In Banc,
    November 27, 1907.
    1. NEGLIGENCE: Engineer: Looking Outside of Track. It is the duty of an engineer driving a dangerous locomotive engine across a populous street of a city, where men, women and children on foot and in vehicles of all kinds are to be expected, to keep a vigilant watch for persons not only on but approaching the track, and to have the engine in reasonable control, so as to be able to stop if necessary when a danger that would be expected to arise does arise. It is his duty to look beyond the narrow bounds of the rails to see if any one, especially a child, is approaching the track.
    2. -: -: -1 — : Degree of Care. The degree of care is always commensurate with the degree of danger. The engineer’s field of observation to avoid danger is as wide as the field which the danger he creates covers.

      3. -: - — : -: Running Train at High Speed. The running of a train through a populous town at a rate of speed of from twenty to thirty-five miles an hour, when the engineer by looking when he was five hundred feet from a crossing could have seen that two children eight or ten years old were running towards the track and into danger, no danger signal being sounded until the train was within one hundred feet or so of the crossing, is negligence.
    4. -: -1 — : -: Child on Track. It is not the law that an engineer is under no obligation to do anything to avoid injuring a child until the child is actually on the track. It is his duty to see a child running towards the track in a populous city and to do what he can to prevent injury to the child.
    5. -: Injury to Child: Defendant’s Liability. Defendant railroad company is liable only for its own negligence, and is not to be held liable for the consequences of the reckless conduct of the injured child. If its plea of contributory negligence is not sustained, it is not charged with the consequences of the child’s negligence, but it is not excused thereby for the result of its own negligence.
    6. -: -: -: Concurring Acts of Negligence. Ordinarily a defendant guilty of negligence is relieved from the liability for his own conduct if the person injured was himself guilty of negligence that contributed to the result. But this rule does not obtain where the injured person is a child too young and immature to observe the care necessary to his own preservation. In such case the law does not excuse defendant’s negligence because the negligence of the child contributed to the injury.
    7. -: -< — : Humanitarian Rule. The question- of whether or not there was evidence tending to show that after the engineer saw the child in peril he could, by the exercise of ordinary care, have averted the accident, need not be considered where the case was not given to the jury with that question in it.
    8. -: -: Contributory Negligence. Whether or not a child eight years old, who on his way home from school, amid confusing circumstances, runs in front of an oncoming train being itself negligently run, without looking, is guilty of contributory negligence, is a question for the jury.
    Appeal from Johnson Circuit Court. —Hon. N. M. Bradley, Judge.

      Affirmed.

      R. T. Bailey for appellant.
    (1) The positive, affirmative testimony of witnesses, who heard a bell ring or a whistle sounded, is not contradicted by those who did not hear it, unless the attention of the latter was called thereto, and they failed to hear the same. Henze v. Railroad, 71 Mo. 638; Britton v. Railroad, 81 N. W. 254; Culhans v. Railroad, 60 N. T. 137; Mc-Keever v. Railroad, 88 N. Y. 667; Hrias v. Railroad, 152 Pa. St. 326; Bohan v. Railroad, 61 Wis. 391; Railroad v. Elliott, 28 Oh. St. 346; Stitt v. Huidekopers, 17 Wall. 393; Railroad v. Pierce, 39 Kan. 395; Railroad v. Lane, 33 Kan. 702. (2) No causal connection was attempted to be shown between the rate of speed at which the train was running and the injury to deceased. The latter, according to plaintiffs’ theory, never saw the train. If he did not, then he was not misled by the rate of speed at which the train was running. Henry v. Railroad, 76 Mo. 293; Warner v. Railroad, 178 Mo. 134; Com. Co. v. Railroad, 113 Mo. App. 547. If the deceased knew the train was approaching, then he was guilty of gross negligence, even for a minor, in running headlong and jumping into a train as it went over the crossing. We insist that the deceased knew the train was coming and that there was no evidence to the contrary. No warnings whatever were necessary as to him, and by reason thereof, plaintiffs are not entitled to recover. Hutchinson v. Railroad, 161 Mo. 253; Murray v. Railroad, 176 Mo. 189; Heintz v. Railroad, 115 Mo. App. 671; Railroad v. Willis’ Adm’r, 97 S. W. 23. There can be no middle ground in regard to this matter. It must be said that he can go blindfolded, or shut his eyes, and rapidly run and jump into a train, or he failed to exercise any care whatever. We therefore contend that on the undisputed facts, the cause should be reversed, without remanding, and judgment entered here for defendant. If he failed to exercise any care whatever, and recklessly jumped into a moving train, in front of hiin, it is the duty of the court to declare1, as a matter of law, that he was guilty of contributory negligence and that the plaintiffs are not entitled to recover. Spillane v. Railroad, 135 Mo. 414; Payne v. Railroad, 136 Mo. 562; Graney v. Railroad, 157 Mo. 678 ; Schmitt v. Railroad, 160 Mo. 58; Walker v. Rail.road, 193 Mo. 480; Wendell v. Railroad, 91 N. Y. 424; Tucker v. Railroad, 124 N. Y. 308; Thompson v. Railroad, 145 N. Y. 200 ; Motel v. Railroad, 2 How. (N. S.) N. Y. 30; Railroad v. Murray, 62 111. 326 ; Henderson v. Railroad, 74 N. W. 525; Trudell v. Railroad, 85 N. W. 250; Givens v. Railroad, 72 S. W. 321; Hayes v. Norcross, 39 N. E. 282; Beach on Con. Neg. (2 Ed.), sec. 117, p. 150; 3 Elliott on R. R, sec. 1172; Murray v. Railroad, 93 N. C. 92; Murphy v. Railroad, 73 N. E. 1018; Messenger v. Dennie, 137 Mass. 197; Serano v. Railroad, 99 N. Y. S. 1103; Baker v. Railroad, 62 Hun 39. (3) Even if the record warranted the submission of defendant’s alleged negligence to the jury, still, the contemporaneous or concurring negligence of deceased should bar a recovery herein. Boyd v. Railroad 105 Mo. 379; Spillane v. Railroad, 135 Mo. 427; Watson v. Railroad, 133 Mo. 250; Peterson v. Railroad, 156 Mo. 559; Holwerson v. Railroad, 157 Mo. '216; Davies v. Railroad, Í59 Mo. 6; Hook v. Railroad, 162 Mo. 584; YanBach v. Railroad, 171 Mo. 347; Guy-er v. Railroad, 174 Mo. 351; Zumault v. Railroad, 175 Mo. 311; Moore v. Railroad, 176 Mo. 542; Evans v. Railroad, 178 Mo. 516; Koons v. Railroad, 178 Mo. 607; Ries v. Railroad, 179 Mo. 7; Petty v. Railroad, 179 Mo. 674; Schmidt v. Railroad, 191 Mo. 232; Green v. Railroad, 192 Mo. 138; Clancy v. Railroad, 192 Mo. 652; Walker v. Railroad, 193 Mo. 580; Boring v. Railroad, 194 Mo. 547; Sanguinette v. Railroad, 196 Mo. 488; McG-rath v. Railroad, 197 Mo. 107; Sites v. Knott, 197 Mo. 711. Deceased was never in danger or on the track until he jumped into the locomotive. Signals could then have done him no good, and, besides, he knew the train was coming and attempted to beat it over the crossing. The locomotive and deceased appeared contemporaneously at the crossing, and under the uncontroverted facts in this record plaintiffs ought not to recover.

      O. L. Eovis and Charles E. Morrow for respondents.
    (1) The failure to ring the bell as required by the statute entitled plaintiffs to recover under the first count of the petition, unless the deceased was guilty of contributory negligence. Holmes v. Railroad, 190 Mo. 98; Stotler v. Railroad, 98 S. W. 518; Hanlon v. Railroad, 104 Mo. 381; Lloyd v. Railroad, 128 Mo. 595; Lamb v. Railroad, 147 Mo. 171; Reed v. Railroad, 107 Mo. App. 238. Deceased was a negro boy, an infant, only eight years of age, and was not guilty of contributory negligence as a matter of law in failing to look and listen for a train. He was only required to use such care as one of his age and experience would use. It was a question for the jury. Holmes v. Railroad, 190 Mo. 98; Dlauhi v. Railroad, 105 Mo. 645; Mullin v. Railroad, 196 Mo. 579; Anderson v. Railroad, 161 Mo. 424; Ruschenberg v. Railroad, 161 Mo. 70; Campbell v. Railroad, 175 Mo. 161; Heinzle v. Railroad, 182 Mo. 528; Burger v. Railroad, 112 Mo. 249; Deschuer v. Railroad, 98 S. W. 737; Koenig v. Railroad, 194 Mo. 564; Wise v. Railroad, 198 Mo. 558. In this case there were confusing circumstances. The freight train puffing and blowing and bell ringing and headed right toward the crossing and the older brother saying to the deceased, “Come on, let’s get across out of the way of the freight train.” His attention was attracted to it. Holmes v. Railroad, 190 Mo. 98;' Walker y. Railroad, 193 Mo. 480. These questions were all passed on by this court on former appeal in this case. That decision is the law of this case and the questions are not open for review now. Mills v. Railroad, 94 S. W. 973; Overall v. Ellis, 38 Mo. 200; Chapman v. Railroad, 146 Mo. 481; Baker v. Railroad, 147 Mo. 140; Bealey v. Smith, 158 Mo. 515 ; Carey v. West, 165 Mo. 452;-Butler Co. v. Bank, 165 Mo. 456 ; Taussig v. Railroad, 186 Mo. 269'. (2) The engineer saw, or by the exercise of ordinary care could have seen, the deceased, a child, in peril, trotting towards the track, his attention attracted by a freight train, with steam blowing off and bell ringing, in time to have given him a danger signal and to have stopped the train and checked its speed and avoid killing him. Defendant is liable although the deceased is guilty of contributory negligence. Holmes v. Railroad, 198 Mo. 98 ; Jett v. Railroad, 178 Mo. 664; Kelley v. Railroad, 75 Mo. 138; Meeker v. Railroad, 178 Mo. 173; Klockenbrink v. Railroad, 172 Mo. 678; Morgan v. Railroad, 159 Mo. 262; Lloyd v. Railroad, 128 Mo. 595; Schlereth v. Railroad, 115 Mo. 87; Kellny v. Railroad, 101 Mo. 67; Livingston v. Railroad, 170 Mo. 452; Baird v. Railroad, 146 Mo. 265; Bunvan v. Railroad, 127 Mo. 12. (3) It was the duty of defendant’s servants to be on the lookout and especially for children and to exercise ordinary care to keep from injuring them. Heinzle v. Railroad, 182 Mo. 528; Livingston v. Railroad, 170 Mo. 452; Meeker v. Railroad, 178 Mo. 173; Baird v. Railroad, 146 Mo. 265; Wise v. Railroad, 198 Mo. 509; Aldrich v. Railroad, 101 Mo. App. 77; Moritz v. Railroad, 102 Mo. App. 657; Bunyan v. Railroad, 127 Mo. 12.
   VALLIANT, J.

Plaintiffs’ child, eight years old, was struck and killed by a locomotive engine drawing a passenger train on defendant’s road at the crossing of Warren avenne in the city of Warrensburg. The petition charges that the injury was caused by the negligence of defendant’s servants operating the engine. This is the. second appeal in this case.

At the first trial the court gave a peremptory instruction to the jury at the close of the plaintiff’s evidence to find for the defendant; from the judgment following the verdict on that instruction the plaintiffs appealed. On that appeal this court reversed the judgment and remanded the cause to be retried.

The evidence before us then tended to show negligence on the part of the defendant’s servants operating the engine causing or contributing to cause the injury, and also negligence on the part of the child also so contributing, unless it should be found that on account of the tender years and immaturity of the child he was incapable of committing negligence in the legal sense of that term. We then held that whether the child under the facts shown in the evidence was capable of committing negligence in that sense was a question of fact for the jury and not for the court. The cause went back and was retried in the circuit court and that question was submitted to the jury; the verdict was for the plaintiffs for the statutory penalty, $5,000, and the defendant has now appealed. The evidence for the plaintiffs at the second trial was the same as that at the first trial, with perhaps some slight changes which we will presently notice; therefore, it will not be necessary to restate the substance of that evidence now, but it will be necessary to read the opinion on the former appeal in connection with this for an understanding of the case made by the plaintiffs’ evidence, and also for an understanding of what the court then decided as to the law of the case as it was then presented. [Holmes v. Railroad, 190 Mo. 98.]

At the second trial defendant introduced a number of witnesses whose testimony tended to contradict that of the plaintiffs’ witnesses in some particulars, especially in reference to the ringing of the bell and the sounding of the whistle, and the learned counsel for defendant thinks that this evidence also shows that the child saw this train coming- and recklessly threw himself in front of it.

In reference to the sounding of the whistle, three places along the railroad are mentioned by the witnesses, first, the Fort Scott crossing which is one mile west of Warren street, the place of the accident; second, the whistling post near the Brewery, a quarter of a mile west of Warren street, and, third, Mulberry street, 650 feet west of Warren. The testimony shows without conflict that the road-crossing whistle signal was given at the Fort Scott crossing, and it shows with but little conflict that the whistle sounded the station signal at the whistling post near the Brewery; and although there was some evidence on behalf of the defendant that the whistle was sounded at the Mulberry street crossing, yet even the defendant’s engineer does not sustain that position, and the testimony is in irreconcilable conflict on the point of the sounding of the whistle after it sounded at the Brewery. The testimony of the engineer was that he sounded the whistle at the whistling post near the Brewery, and not again until he sounded the danger signals when he was within a hundred feet of the crossing, when he saw that the boy that was in front was within forty or fifty feet of the crossing and aiming to cross. ■ The testimony for the plaintiffs was that the whistle was not sounded after passing the Brewery until in the instant of the accident. The evidence showed that the engineer could have seen these boys when he was from 500' to 700 feet distant, and they were from 130 to 1501 feet from the track running towards it, yet he testified that he did not look to the right or left beyond the railroad right of way. He said: “I was looking along the track. Q. Yon were not looking south of the crossing at all? A. Not any particular distance south. Q. You just looked along the track? A. Yes, sir. Q. And you never looked south of the crossing to see who was coining down that street at all, until you saw this hoy, did you ? A. Nothing that attracted my attention. Q. I say you were not looking out that way? A. I wasn’t especially looking down the street. ... I saw when he was in — well, my vision would reach out forty or fifty feet on each side of the track. Q. But you didn’t look out any further than that? A. I didn’t try to look out any further, I don’t know as I could see any further.” The engineer also testified: “Q. Well, you saw this hoy? [meaning the one that was in the lead]. A. Yes, sir. Q. How far was he from the track? A. I think forty or fifty feet. Q. And he was running? A. Yes, sir. Q. Right towards the track? A. Yes, sir. Q. And looking north? A. Yes, sir, looking ahead of him.” He also testified that the hoy crossed the track within ten, twelve or fifteen feet in front of the engine. The engineer must have been mistaken in his estimates; the hoy was either very much nearer the track when the engineer discovered him, or else the engine was very much farther from the crossing than the engineer estimated, because if the engine was going thirty or thirty-five miles an hour, as the plaintiffs’ witnesses say it was, or even if it was going only twenty miles an hour, as the engineer says it was, it was going several times as fast as the boy was, and if the hoy was forty or fifty feet away and the engine was only one hundred feet distant it would have crossed over before the hoy had covered half the distance he was to go.

The defendant’s testimony was that the hell was being rung continuously from the time the engine passed the whistling post at the Brewery until the accident occurred, the testimony for the plaintiffs was to the contrary; on that point it may he said there was substantial testimony on both sides.

Defendant’s learned counsel attach some importance to a sentence that occurs in the statement of the facts of the case in the opinion on the former appeal, viz: “There was a freight train standing on a side track just east of the crossing ‘with steam on and puffing,’ and the attention of the boys was attracted to it as they ran along.” It is not disputed that the freight train was there, headed for the crossing, waiting the coming of this passenger train, and that it was “with steam on and puffing,” but it is contended that it was an assumption of fact, without evidence,to say that the attention of the boys was attracted to it, because, it is said, the only testimony that the attention of the boy who was killed was attracted to- the freight train was that of the other boy who escaped and who testified that he was noticing the freight train and he supposed his brother was doing so also. Whether the attention of the boys was attracted to the freight train and they were hurrying to get across in front of it, cannot be known as with absolute certainty, but it was an inference that was naturally to be drawn from the circumstances. These two children were in the habit of crossing that track daily going to and coming from school, their attention had been called by their grandmother and their teacher to the danger that attended the crossing; therefore, when they saw one of these dangerous machines against which they had been warned emitting noise and steam, puffing under the restraint of being held, who can say what effect it had on the timid imagination of a child eight years old?

The nine-year-old brother of the child that was killed testified that he saw the freight train and was running to get across ahead of it, and on this second trial he testified that he told his brother, who was a few feet behind him, to get across ont of the way of the freight train; he also testified that he did not at that time see the passenger train. Thus we have the positive testimony of one of the boys that his attention was attracted to the freight train and that he attracted his younger brother’s attention, to it, and the conduct of both was consistent with that fact. Defendant insists that the evidence shows that the deceased child saw this passenger train, yet he went headlong into the danger. If that was the fact it would be a very strong circumstance to* prove that the child was not of sufficient discretion to be held guilty of contributory negligence. No sane person of mature years, not bent on suicide, would have acted as that child did if he had seen the train coming so close to him. But the testimony of the witness on whom the defendant relies to prove that fact is not clear or satisfactory. That witness said he saw the boys as they approached the crossing, “one was looking pretty straight ahead, but the other one was watching back west; looked to me like he was watching the train. ’ ’ The witness was not near enough to have a very minute view of the boys and he was not engaged in any business that required him to give them particular attention; he was inaccurate in his description of their movements, he said they came from the north side of the track, crossed over to the south side and were “sort of standing there,” then turned north again towards the track. His testimony as to the movements of the boys is in conflict with that of all the other witnesses, and he was the only one who undertook to say that the deceased boy had his face turned west; all the other witnesses said that both the boys were facing north.

At the close of the plaintiff’s evidence, and again at the close of all the evidence the defendant asked an instruction to the effect that the plaintiffs’ were not entitled to recover, which instruction the court refused and defendant excepted.

The cause was submitted to the jury under the following instructions for plaintiffs:

“1. The jury are instructed that in approaching the crossing of Warren street with its passenger train mentioned in evidence it was the duty of defendant’s engineer in charge of said train and the law required him to be watchful and on the lookout for persons traveling on the street so as to avoid injuring them.
‘ ‘ 2. And if the jury believe from the evidence that Freeborn O. Holmes was traveling on said Warren street and approaching defendant’s track where the same crosses said street and that he was at the time of and just preceding the injury in the exercise of such care and caution as a person of his age, discretion and experience would naturally and ordinarily use under similar circumstances and that defendant’s said engine and train approached said Freeborn Gr. Holmes and said crossing along its said track and he was, or was about to place himself in danger of being struck by said engine and train and injured, and that defendant’s said engineer in charge of said train saw, or by the exercise of ordinary care could have seen his said danger or that he was about to place himself in a position of danger, in time by the exercise of ordinary care to have sounded the whistle on said engine or to have stopped said train, or checked the speed of said train, and prevented injury to said F'reeborn Gr. Holmes, and that defendant’s said engineer in charge of said train failed to exercise such ordinary care and failed to sound said whistle, or failed to stop said train, or failed to check the speed of said train, and that by reason of such failure to exercise such ordinary care said whistle was not sounded, or said train was not stopped, or the speed of said train was not checked, and by reason thereof the said Freeborn Gr. Holmes was struck by said engine and train and killed, then yon must find for the plaintiffs on the second cofimt in their petition.
“3. The court instructs the jury that it was the duty of defendant’s employees in charge of its locomotive and train to ring the bell on the engine at Mulberry street and keep the bell ringing until the engine crossed Warren street. And if the jury believe from the evidence that defendant’s said employees did not so ring said bell and by reason thereof Freeborn G. Holmes, while in the exercise of such care as ought reasonably to have' been expected from one of his age and capacity, was struck and killed by the said engine, then the jury must find for the plaintiffs on the first count of the petition.
“4. If the jury believe from the evidence that Freeborn G. Holmes was a boy of immature age and had not the capacity of an adult, and that he exercised such care as ought reasonably to have been expected for one of his age and capacity, then he was not guilty of contributory negligence.”

Exceptions to the giving of those instructions were duly preserved.

There were also instructions defining ordinary care, the amount of the verdict if for the plaintiff, and the form of the verdict, etc.

The main insistence of the defendant now is that the court should have given the peremptory instruction for a verdict for the defendant.

So far as the question of the defendant’s negligence is concerned we think the testimony is stronger for the plaintiffs now than it was when the case was here on the former appeal. Even the defendant’s testimony has strengthened the plaintiff’s case in that particular. The engineer testified that he did not look to the north or to the south of his track to see if any one was approaching it; he really seemed to be of the opinion that it was no part of his duty to look elsewhere than in the narrow space of the railroad track. That idea seems to be embodied in one of the instructions asked by defendant and refused, viz: “If the jury believe from the evidence that deceased was struck by defendant’s locomotive at Warren street crossing, before he got upon defendant’s track, then your verdict must be for defendant regardless of all other issues herein.” To lay the foundation for that instruction the defendant endeavored to show that the child was struck, not by the cow-catcher, but by the pilot beam, and therefore he was not between the rails and therefore the defendant was not liable. It is the duty of an engineer driving a dangerous engine through a populous street of a city where men, women and children on foot and in vehicles of all kinds are to be expected, to keep, a vigilant watch for persons not only on but approaching the track and to have the engine in reasonable control so as to be able to, stop if necessary when a danger that could have been reasonably expected to arise, does arise. His duty in this respect is different when he is going through a populous part of a city from what it is when he is on a part of the railroad where people are not expected to be. In many of the cities of this State there are ordinances limiting the speed of such engines to six miles an hour and this court has repeatedly held such ordinances valid, yet here was an engineer running his engine in a populous part of the city at the rate, according to plaintiff’s witnesses, of thirty to thirty-five miles an hour, according to his own testimony twenty miles an hour, yet he says that he did not try to look to the right or the left of his track and the result was he did not see these boys until they were so close to the track that it was impossible to avoid the accident. His duty was of course to look ahead and not lose sight of his track, but the eye is quick of motion and a glance to the right and the left would not have impaired his view of the track. He could have seen these children certainly when he was within 500 feet of the crossing and if he had looked he would have seen that they were running into' danger .and if he had then sounded the danger signal he might have avoided killing the child. But his testimony gives the impression that he did not consider it within the field of his duty to look beyond the track before him and an instruction asked by defendant seems to imply that defendant’s view of the law is that unless the child was actually on the track between the rails when he was struck, the verdict must be for the defendant “regardless of all other issues.”

If that engineer was taught that he was under no obligation to look to the right or the left of his track when running his engine at a high rate of speed in a populous part of a city, or that he was charged with care to avoid injuring people only when they were actually on his track, his teaching was wrong. His field of observation to avoid danger was as wide as the field which the danger he created covered. The degree of his care was commensurate with the degree of the danger. In Livingston v. Railroad, 170 Mo. 452, the railroad company contended that the engineer was under no obligation to do anything to avoid injuring the child until it was actually on the track, but this court held that it was his duty to have seen the child running towards the track and to have done what he could under the circumstances to prevent the injury, and we so hold in this case.

In the brief for defendant, pages 61 and 139, the idea is advanced that the only theory on which the plaintiffs’ judgment could be sustained would be that the defendant is liable for the consequences of the reckless conduct of the deceased child. That is a misconception of the theory on which the defendant’s liability rests. The defendant is liable only for its own negligence, and if its plea of contributory negligence is not sustained, still, it is not charged with the consequence of the child’s negligence; but it is only not excused thereby for the result of its own negligence. It -is not always essential to a plaintiff’s recovery, in an action for tort, that the evidence should show that the accident was the result of the defendant’s negligence alone. A defendant may be liable if his negligence contributes with that of a third person to produce the injury complained of; in such case he is not held liable for the negligence of the third person, but only for his own negligence, without the contributing force of which the negligence of the third person would not have caused the injury.' But the policy of the law is such that ordinarily a defendant guilty of negligence is relieved from the liability for his own conduct if the person injured was himself guilty of negligence that contributed to the result. On that theory the defendant’s act is none the less negligent, and he is none the less culpable, but the law will not allow a plaintiff to recover when he himself, or the person for whose injury he sues, was also guilty of negligence contributing with that of defendant to the result. There is reason and justice in that policy of the law; it is an admonition to every one to exercise due care for his own safety, and it authorizes another to presume that he will do so, and, so presuming, adjust his own conduct. But common experience tells us that a child may be too young and immature to observe the care necessary to his own preservation and therefore when a person comes in contact with such a child, if its youth and immaturity are obvious, he is chargeable with knowledge of that fact and he cannot indulge the presumption that the child will do what is necessary to avoid an impending danger. Therefore one seeing such a child in such a position is guilty of negligence if lie does not take into account the fact that it is a child and regulate his own conduct accordingly. An act in relation to a person of mature years might he free from the imputation of negligence while an act of like character in view of a child would be blameworthy. Therefore when the law says to the defendant although the act of the deceased child contributed with your act to produce the result, yet, because of his youth and immaturity, he is not adjudged guilty of negligence, it does not charge the defendant with the consequence of the child’s conduct, but it only does not, for that reason, excuse him for its own negligence.

If the defendant in such case had been guilty of no negligence there would have been no accident.

It is also insisted in the brief for defendant that it cannot be held liable because, it says, there was no evidence tending to show that the conduct of the engineer was wilful, wanton or reckless. The learned counsel is there considering the case from the standpoint of what we have in former cases called the humanitarian rule, which allows a plaintiff to recover under certain circumstances although he has himself been negligent. We need not discuss the question of whether or not there was evidence tending to show that after the engineer saw the child in peril he could, with the means at hand and under conditions as they existed, by the exercise of ordinary care, have averted the accident, because the case was not given to the jury with that question in it. • The instructions authorized the jury to find for the plaintiffs only on the theory that the child was at the time exercising that degree of care which could be expected of one of his age, discretion and experience, and an instruction given at the request of the defendant was that if the child “failed to exercise such care and caution as an ordinarily prudent boy of his age and capacity should have exercised under the circumstances, and by reason thereof contributed to his own death, then your verdict must be for the defendant, regardless of all other facts in the case. ’ ’

Taking the testimony for the plaintiffs and that of the defendant together we think it was sufficient to sustain the verdict on the issue of defendant’s negligence.

As to* the plea of contributory negligence it is simply a question of whether this child was old enough and mature enough to he chargeable with the consequence of his act. If he had looked west he would have seen this train and if he did not look he was negligent, if one of his years and maturity is to be adjudged guilty of negligence, and if he did look and did see the train yet ran on thinking to beat it over the crossing his act is to be attributed either to the immaturity of his childish judgment in attempting to calculate the speed of the train compared with his own speed or else incapacity to appreciate the danger or, if he was of sufficient maturity, then his act must be attributed to a spirit of foolhardy daring. But a child of eight years, though he may know the danger, has not always the coolness of judgment in the face of the danger to avoid it, and often the unfortunate conduct of a child in the presence of a startling danger is attributable to timidity rather than daring, to immaturity rather than foolhardiness. Desperate daring and recklessness are not attributes of childhood, they belong to men whose nerves have hardened with experience.

In the first appeal in this case we said that whether this child was of sufficient maturity to be adjudged guilty of negligence was a question of fact for the jury; on the second trial that question was submitted to the jury with appropriate instruction and we see no reason for disturbing the verdict. The judgment is affirmed.

Gantt, C. J., Burgess, Lamm and Woodson, JJ., concur. Fox and Graves, JJ., dissent.


source: Caselaw Access Project

author: GANTT, C. J.

license: Public Domain

text:
    THE STATE ex rel. TEDFORD v. KNOTT et al., Railroad and Warehouse Commissioners.
    In Banc,
    November 27, 1907.
    1. PUBLIC OFFICER: Chief Grain Inspector. The Chief Grain Inspector of Missouri, appointed by the Board of Railroad and Warehouse Commissioners for a term of four years, is an officer, and not an employee. He has a fixed term of four years, is denominated an officer by the law which creates his position, is required to take an oath and give bond for the faithful discharge of his duties, the law devolves on him public duties of prime importance to the public, and those duties are fixed and cohtinuing. Thus by all the tests which distinguish an officer from a mere employee he is an officer.
    2. -: Removal: No Notice. An officer cannot, without reasonable notice, be removed by the board appointing him, although the law, giving authority to the board to remove him upon written charges of misconduct, does not in terms require notice.
    3. -: -: -- — : Immediate Removal. While the board was in session and relator was present written charges against him were presented to the board, and read, and denounced by him as untrue, and he asked for time in which to prepare his answer. He was given no time, but was told he could examine the witnesses who were present. No copy of the charges had been previously furnished him, he had summoned no witnesses and was given no opportunity to summon any or to employ counsel, but, after the witnesses called in support of the charges were examined, he was removed. Held, that he was not given any reasonable notice, or notice at all, such as the law contemplates, and the proceedings had no semblance of a lawful investigation, and his removal was void.
    4. -: Illegal Removal: Remedy: Certiorari. The removal', of an officer by a board vested with power to remove him upon written charges preferred, is an act judicial in its nature, and if illegal because made Without notice to him, his remedy, where no appeal or writ of error is provided, is by certiorari.

    Certiorari.
    Record and proceedings oe board quashed.

      Brown, Harding & Brown for relator.
    (1) The Chief Inspector of Grain for the State of Missouri is a state officer, appointed for a fixed term of four years by the Board of Railroad and Warehouse Commissioners, and can only be removed from office for cause; that is, “after due presentation of charges embracing causes for his removal, and notice of the same with a reasonable opportunity to be heard upon such charges before said board of commissioners.” Secs. 7624, 7654, 7656, 7662, R. S. 1899; State ex rel. v. Maroney, 191 Mo. 546. (2) It is equally certain that certiorari is his proper remedy. Prom the hasty, arbitrary and ill-advised proceedings removing him from office, no appeal or writ of error lies to a superior court. State ex rel. v. St. Louis, 90' Mo., 19; State ex rel. v. Police Commissioners St. Louis, 14 Mo. App. 297; State ex rel. v. Maroney, 191 Mo. 548; State ex rel. v. Walbridge, 119 Mo. 383; Horstman v. Adamson, 101 Mo. App. 119; State ex rel. v. Brown, 57 Mo. App. 199'.

      .Reed, Yates & Mastín for respondents.
    (1) The petition in this case called “Application for Writ,” alleges that relator was appointed on November 1, 1903, for a term ending on November 1, 1907. It, therefore, clearly appears that to grant the writ will he wholly unavailing, as relator’s term of office will have expired before such action can be had. To grant writs of this nature is an act that lies within the sound discretion of the court, and the policy of the law has ’ever'been to refuse action under such circumstances as are here presented. Williams v. County Commissioners, 35 Me. 345; Howard v. Gage, 6 Mass. 462; Insurance Co. v. Phillips, 141 Mass. 546; State ex rel. v. Gibson, 187 Mo. 356; State ex rel. v. Bank, 39 Iowa 706. It is a general principle, applicable to certiorari, as to all other extraordinary remedies and proceedings, that nrocess will not issue where it would be without beneficial results, and certiorari will not lie where no substantial relief can be given. 2 Spelling, Extraordinary Remedies, sec. 1896. (2) The only writ of certiorari known to our practice in cases of this kind is the common law writ of that name which only brings up the record and can only reach errors or defects affecting the jurisdiction of inferior tribunals. State ex rel. v. Smith, 101 Mo. 174; State ex rel. v. Baker, 170 Mo. 390;'Ward v. Board of Equalization, 135 Mo. 319; State ex rel. v. City of Kansas, 89 Mo. 38; State ex rel. v. Edwards, 104 Mo. 126; Railroad v. "State Board, 64 Mo. 294; 2 Spelling, Ex. Rem., sec. 1915. This jurisdiction involves only (1) the subject-matter, and (2) the person. Jurisdiction of the subject-matter must be conceded, since this is conferred by section 7662, Revised Statutes 1899, which section not only confers the right to remove for cause, but also without cause, i. e., “when it shall be deemed necessary to reduce the number of persons appointed or employed, their terms of service shall cease under the orders of the same authority by which they were appointed or employed.” Assuming, however, that the board has authority to remove for cause only, it is apparent from all authorities that if it he decided that the board had jurisdiction of the subject-matter and of the person of relator to the time its action was taken, then no inquiry is permissible into the manner or form in which its jurisdiction was exercised. The requisites necessary to confer jurisdiction in the case, so far as the relator’s person is.concerned, may be said to be formal charges filed and notice to relator of such charges, the purpose of the notice being to secure the attendance of relator and an opportunity to answer. The attendance of relator at the time the charges were filed, read to him and considered, filled all requirements of the law. State ex -rel. v. Buchanan County Board, 108 Mo. 242; Ward v. Board, 135 Mo. 319; 'State ex rel. v. Baker, .107 Mo. 390; State ex rel. v. Smith, 101 Mo. 174. The alleged refusal of the board to grant a continuance of the hearing only goes to- the manner in which the board exercised its jurisdiction, and not a matter of review in a proceeding of this nature. This at most was but an exercise of jurisdictional discretion, and, as we have already seen, a writ of this nature does not permit inquiry into this question.
   GANTT, C. J.

The relator, Tedford, applied to this court in January of this year, for a writ of certiorari directed to'the respondents as the Board of Railroad and Warehouse Commissioners of this State, to certify to this court the proceedings had by the said board on the 8th of January, 1907, wherein and whereby they discharged, dismissed and removed the relator from his office as Chief Grain Inspector of this State. The application was granted and the writ issued returnable on or before January 23. The respondents in due time made their return, wherein they stated that at the regular session of said board, held at Kansas City, in this State, certain charges in writing, duly verified by the affidavit of the complainant, were filed with the said board by one Baxter Brown, a copy of which said charges was made a part of the return. These charges in substance were that in the month of May, 1906, the relator without authority discharged one McVeigh, who had theretofore been the deputy grain inspector of said board, and that after the removel of said McVeigh he asked for a hearing before the board for reinstatement by them, and on said hearing relator failed and refused to produce any evidence or show any legal cause for the removal of said McVeigh, and thereupon the said board set aside the order of removal, but the relator in defiance of the action of the board refused to' reinstate McV eigh or put him upon the pay roll; that on or about the 2nd of August, 1906-, the said Tedford without authority of law undertook to and did discharge Baxter Brown, who prior to that time had been engaged as chief clerk in the grain inspection department in Kansas City, and refused to permit said Brown to perform his duties as chief clerk; that the relator had violated the statutes of the State of Missouri in that at divers and sundry times he had permitted the receipt of grain in public warehouses without said grain being inspected and graded by the duly authorized inspector during the year 1906; that the said relator is, and for a long time had been, under the orders and rules of the Board of Railroad and Warehouse Commissioners, the custodian of a certain fund consisting of the proceeds of fees and dues collected for the inspection and weighing of grain; that on or about the month of November, 1906, the said board, by order duly made, directed the relator to give a good .and sufficient bond in the sum of $25,000 for his faithful accounting of said funds; that he has failed, neglected and refused to give said bond, and that in all the matters aforesaid he has been guilty of improper official acts, of insubordination, and has seriously impaired the efficiency of the grain inspection department. These charges were made and sworn to on the 8th of January, 1907. The record discloses that the Board of Railroad and Warehouse Commissioners met on Tuesday, January 8> 1907, at 7:30 o’clock, and the meeting continued until about 10:30 p. m. The record then recites: ‘ ‘ The conference having concluded its deliberations, the chairman, Knott, asked if there was any further business, when Mr. Baxter Brown of Kansas City arose and stated that he had a matter to present to the board, and asked the secretary to read a copy of the charges above noted, which were then read by the secretary.” At the conclusion of the reading of the foregoing charges the record recites: * ‘ Chairman Knott asked Chief Inspector Tedford what he had to say in answer to the charges preferred against him by Mr. Brown; Mr. Tedford replied, that the charges were not true, but he had no time at such an hour and on such short notice to prepare his answer and asked for more time. Mr. Knott replied that the entire inspection department force was present and that Mr. Tedford could question Mr. Brown’s witnesses and call any member of the force to testify in his behalf. Mr. Brown stated that he was ready to submit testimony in proof of his allegations. Commissioner Wightman objected to proceeding further in the matter at that time; that Chief Inspector Tedford should have a reasonable length of time in which to prepare his answer, and he moved that the board postpone further action for ten days in order that Mr. Tedford might have sufficient time in which to prepare his reply to the charges. Chairman Knott offered as a substitute that the board proceed to an immediate hearing of the testimony in the case. Mr. Tedford again asked for a postponement in order that he might have time to consult an attorney and prepare his. defense. Commissioner Oglesby said that he was acting under the advice of counsel and had to support the substitute1, as Mr. Tedford could, if he wanted to be mean about it, cause the board trouble and embarrassment. Mr. Tedford answered that he would retire and not further participate in the proceedings. At this moment, as Mr. Tedford reached for his overcoat and hat, preparing to retire from the room, Chairman Knott directed the secretary to read to Tedford the following order: ‘Fred H. Tedford, Esq. We hereby demand that you at once turn over to the Board of Railroad and Warehouse Commissioners of the State of Missouri, any and all moneys which you now have in your possession or- under your control, arising from the collection of fees and dues for the weighing and inspection of grain and hay, and any and all other moneys which you may have in your possession or under your control, and which came into your hands as chief inspector. January 8, 1907. Board of Railroad and Warehouse Commissioners of the State of Missouri. By John A. Knott, Chairman. T. M. Bradbury, Secretary.’ While this order was being read by the secretary, Mr. Tedford rushed from the room in great haste, slamming the door behind him. The substitute was adopted by the votes of Commissioners Knott and Oglesby, Commissioner Wightman voting no. Several members of the department testified as to the charges preferred. When the taking of the evidence had concluded, Commissioner Oglesby moved that the charges as made by Mr. Brown against Tedford be sustained and that Mr. Tedford be removed from the office of chief grain inspector, said removal to take place at once. The motion was seconded by Mr. Knott. Mr. Wightman objected, saying that he thought the charges were altogether too sudden and that Mr. Tedford ought to have an opportunity to file his denial and get such evidence as to contradict the testimony. The motion prevailed by the vote of the commissioners Knott and Oglesby. Commissioner Wightman absent.” On the next morning a formal notice was served upon the relator that he had been removed the night before upon the charges filed against him by Baxter Brown, and he was instructed to turn over the keys of the office and papers belonging thereto to Mr. Harry C. Nunn who had been appointed in his stead.

The return further pleads that it is not true that the relator had no notice that any charge or. complaints were to be made against him, but on the contrary, on the day preceding the filing of said charges, one of said commissioners;, Rube Oglesby, informed the relator that charges would be preferred against him at the then session of said board, and respondents further state that relator was present at the meeting of' the board on the 8th of January, 1907, and the charges were read over to him, and that at that time it was stated to Mm in substance that he would be permitted to examine the witnesses about the testimony that was introduced against him. Relator at first filed a motion to strike out a portion of respondent’s return, wMch was overruled by this court. Afterwards relator filed a denial of the return and then subsequently, by leave of the court, withdrew that denial, and filed a motion for judgment on the pleadings. And it is upon this motion that the cause has been heard.

As we were ,all of the opinion that the action of the majority of the Board of Railroad and Warehouse Commissioners in dismissing relator from his position as chief inspector was arbitrary and without authority of law, judgment was directed quashing the record and proceedings of the Board of Railroad and Warehouse Commissioners wherein , and whereby they attempted to discharge relator from his office as chief inspector. It was directed at that time that the opinion of the court be filed at a later date.

I. The relator was appointed November first, 1903, as chief inspector of grains for this State for a term ending November first, 1907, under and by virtue of section 7624, Revised Statutes 18901. The statute under which relator held his office as cMef inspector at the time of his attempted removal provided that his “term of office as chief inspector of grain shall be for four years.” It was made his duty to have a general supervision of the inspection of grain as required by the laws of this State under the immediate direction of the Board of Railroad and Warehouse Commissioners. [Sec. 7654, R. S. 1890.] By section 7656, Revised Statutes 1899, he was required to take an oath that he would faithfully and strictly discharge the duties of his said office according to law and the rules and regulations prescribing his duties; and to execute a bond in the penal sum of $50,000 to the State of Missouri, conditioned that he would pay all damages to any person or persons who might he injured by reason of any neglect, refusal or failure to comply with the law. Section 7662 provides: “Upon complaint in writing of any person to said commissioners, supported by satisfactory proof, that any person appointed or employed by said commissioners under the provision of this article has violated any of the rules prescribed for his government, or has been guilty of any improper official act, or has been found incompetent for the duties of his position, such person shall be removed from Ms employment by the same authority that appointed Mm, and his place shall be filled, if necessary, by a new appointment. ’ ’

Eelator is an officer under the laws of this State by all the tests which distmguish an officer from a mere employee. He has a fixed tenure of four years. He is denominated an officer by the law which creates his position and the same act devolves upon him public duties of prime importance to the State. He was required to take an official oath and to enter into a bond in the sum of fifty thousand dollars for a faithful discharge of Ms official duties. The duties of the position are fixed and continuing, whoever the incumbent may be. [State ex rel. v. May, 106 Mo. 488.] It is obvious that the Legislature has provided that the Chief Grain Inspector and other appointees can be removed by the board only upon written charges of misconduct, section 7662, but the statute makes no affirmative provision for notice to the officer of the charges, “but the law in accordance with the principles of justice, — principles which are fundamental and eternal, will require that notice be given before any person can be passed upon, either in person, estate or any other matter or thing to which he is entitled. And though the statutes do not in terms require notice, the law will imply that notice was intended.” [State ex rel. v. Walbridge, 1191 Mo. l. c. 394 and 395; Wickham v. Page, 49 Mo. 526; Brown v. Weatherly, 71 Mo. 152.] “And what the law will imply is as much a part and parcel of a legislative enactment as though set forth in terms.” [State ex rel. v. Board, 108 Mo. l. c. 242.] No such reasonable notice as the law contemplates was given relator of the charges preferred against him. Indeed no notice whatever was given him, because the proceedings on the night when the order of removal was made had none of the semblance of a lawful investigation. The relator had not been served with a copy of the charges, was denied an opportunity to have counsel or summon his witnesses. He very properly refused to remain and witness the conclusion of the utterly illegal proceeding. The action of the board in passing the order of removal of relator was void because in excess of its jurisdiction. It could only proceed upon notice and nothing approaching notice, in the meaning of the law, was given relator in this case. As the power conferred upon the board to remove for cause upon complaint in writing, plainly provided for a hearing and determination of the truth or falsity of the charges, it was judicial in its nature and as no appeal or writ of error is provided, certiorari is the appropriate if not the only remedy which relator had to undo the arbitrary action of the board.

The judgment quashing the proceedings of the board in so far as they attempted to remove relator from his office as Chief Grain Inspector, having been already entered, it only remains to indicate our reasons therefor in this opinion, which will be filed as of the date of the judgment.

All concur.