Sharp v. Missouri Pac. Ry. Co.

• Decision Date: 01 May 1908
• Parties: SHARP et al. v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

111 S.W. 1154

213 Mo. 517

SHARP et al. v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri, Division No. 1.

May 1, 1908.

Rehearing Denied July 3, 1908.

1. DEATH—ACTION FOR CAUSING—PETITION— ALLEGING PLAINTIFFS TO BE ALL THE MINOR CHILDREN.

Under the rule for liberal construction of pleadings, provided by Rev. St. 1899, § 629 (Ann. St. 1906, p. 652), the petition in an action for death, right to sue for which is in all the minor children, shows with sufficient certainty, as against objection made for the first time after trial, that the plaintiffs are the only minor children of deceased, it stating that at the time of the accident they were "all" the children of deceased, and that he left surviving him his wife and "these plaintiffs," and that plaintiffs are minors.

2. SAME—CAUSE OF DEATH—EVIDENCE.

Evidence in an action for death held sufficient to go to the jury on the question of injury received from an accident being the cause of the death.

3. APPEAL AND ERROR—REVIEW—EXCLUSION OF EVIDENCE—RECORD.

Refusal to admit in evidence entries in an inspection book cannot be held error; the party having been given permission to copy the entries into the bill of exceptions, but not having availed himself thereof, so that it cannot be said what they were, or whether material.

4. EVIDENCE—PRIMARY AND SECONDARY EVIDENCE.

The primary evidence of the inspection of cars being the testimony of the inspector and entries in his tally book, made at time of his inspection, a record, in the nature of a ledger, subsequently compiled by another from tally books, is not admissible; it not even being shown to have been correctly copied, and no excuse being made for absence of the original memoranda or the evidence of the inspector.

5. APPEAL AND ERROR—REVIEW—POINTING OUT ERROR.

The court will not search for error in an instruction, none being specifically pointed out, but it being merely said of it generally that it is bad law.

Appeal from Circuit Court, Jackson County; John G. Park, Judge.

Action by Peter Sharp and others, by next friend, Gertrude L. Sharp, against the Missouri Pacific Railway Company. Judgment for plaintiffs. Defendant appeals. Affirmed.

Elijah Robinson, for appellant. G. B. Silverman and Frederick A. Boxley, for respondents.

LAMM, J.

Defendant appeals from a judgment nisi of $5,000 in favor of plaintiffs, who are the minor children of David W. Sharp, deceased, and who sue by their mother, Gertrude L., as next friend.

The gist of the petition is that on September 16, 1903, while in the line of his duty in climbing one of defendant's moving freight cars to get on top, one of the grab irons or iron rods in the car's ladder pulled from its fastenings as he was using it as a hand hold, and thereby the said David W. Sharp, a switchman in defendant's employ, was caused to fall on his back across one of the rails of defendant's adjoining track, by reason of which he was so greatly injured that on the 1st day of November, 1903, he died. It is alleged that it was the duty of defendant to keep the grab irons constituting the ladder or hand holds on said car in good and safe condition, so that switchmen could with safety climb up and down; that defendant disregarded its duty in that behalf, and (to use the language of the petition) "did furnish said David W. Sharp with unsound, unsafe, defective, and insufficient equipment, in this: That on the said 16th day of September, 1903, one certain grab iron, or hand hold, being one rod of iron, of a ladder constituted of four (or five) rods on the side of a certain freight car then in the possession, control, and operation of the defendant, as a sort of ladder by means of which brakemen and switchmen climb upon said cars, was rusted and loose in its fastenings; and that the wood of the car in which said grab iron, or hand hold, or iron rod was fastened, was rotten and unsafe." It is further averred that Sharp had no notice of the rusty and rotten condition aforesaid, and that such condition could not have been discovered by him with the exercise of due caution and care, but that such defects were known to the defendant, or might by the exercise of ordinary care on its part have been known to it; and that the death of Sharp resulted from the fall and injury due to the defective condition of said grab iron or hand hold and the defective and rotten condition of the car to which it was fastened. The answer admits Sharp was in the defendant's employ as switchman on the 16th day of September, 1903, admits he received some slight injury on that day, but denies he received injuries to the extent or of the character set forth in plaintiff's petition, denies the accident occurred in the manner alleged in the petition, and alleges Sharp's negligence, but denies its own or that of its agents or employés. It further admits the death of Sharp, but denies it was occasioned by injuries received in the accident in question. In the brief of learned counsel, the following propositions are laid down, on one or all of which a reversal is sought: "(a) Both defendant's demurrer to the evidence and its motion in arrest of judgment should have been sustained, for the reason that the petition did not allege facts that would entitle plaintiff to recover. (b) Under the evidence in the case, the jury could not find for plaintiffs without making a guess as to the cause of the death of David Sharp; and, that being true, the court should have sustained defendant's demurrer to the evidence. (c) The trial court committed error in excluding defendant's record showing the inspections of the car in question. (d) The court committed error in giving plaintiff's instruction No. 1." Contributory negligence is out of the case, nor is there any contention that the judgment is excessive. Other facts and any allegations of the pleadings vital to questions made will appear in the course of the opinion.

1. The first proposition in the case is that the petition was defective in not stating facts entitling plaintiffs to recover. Counsel developes the point as follows: First, "it was not alleged in the petition who were the children of David Sharp at the time of his death"; and, second, "so far as shown by the petition in this case, David Sharp at the time of his death may have left surviving him a dozen children other than those who brought this suit." The point seeks pertinent allegations of the pleadings. Attending to them, the petition contains these averments: "Plaintiffs for cause of action against defendant state that on the 16th day of September, 1903, they were all the children of David W. Sharp, now deceased; that said David W. Sharp departed this life on the 1st day of November, 1903, and left surviving him his wife, Gertrude L. Sharp, and these plaintiffs, and that said wife, Gertrude L. Sharp, has failed to bring any action against the defendant for the death of said David W. Sharp, though six months have now elapsed since such death occurred; that plaintiffs are minors under the age of 21 years, and that Gertrude L. Sharp is the legally appointed and acting next friend for plaintiffs in this suit." The answer contains the following clause: "Defendant, for answer to plaintiffs' petition in the above-entitled cause, * * * admits that one David W. Sharp died some time during the month of November, 1903, and left surviving him his wife, Gertrude L. Sharp, and children Peter Sharp, Roland Sharp, and Thomas Sharp." In this state of the pleadings testimony was introduced without objection showing Peter Sharp was ten years old, Roland, six, and Thomas, five. In response to an inquiry, the mother testified without objection or exception that these little boys were her only children by David W. Sharp at the time of his death, and are their only children living now (i. e., at the trial in July, 1905). It is on the foregoing state of the pleadings and proofs that learned counsel predicate the conclusion that the motion in arrest should have been sustained and the instruction in the nature of a demurrer offered at the close of plaintiffs' case should have been given. Is there substance in such contention? We think not. True, as counsel argue, at common law no one could maintain a civil action on account of the death of another. True it is that such right of action exists alone by virtue of the provisions of the statute, and that under hornbook rules the statute, being in derogation of the common law, must be construed with some strictness. In Jackson v. Railroad, 87 Mo., loc. cit. 429, 56 Am. Rep. 460, Henry, C. J., speaking to the point, said: "It is a statute in derogation of the common law, and must receive a reasonably strict construction." But all this is aside from the real point. The question is not so much how the statute should be construed, as it is how the petition should be construed. The right to sue being in all the minor children, the question is: Does the petition with sufficient certainty show that these minor plaintiffs are the only minor children of David W. Sharp? In construing pleadings under the Code the doctrine of contra proferentem is not allowed in its one time common-law vigor and rigor. The old rule is much clipped by statute (section 629, Rev. St. 1899 [Ann. St. 1906, p. 652]), which provides that: "In the construction of a pleading, for the purpose of determining its effect, its allegations shall be liberally construed, with a view to substantial justice between the parties." That section of the statute does not change the fundamentals of good pleading where justice demands their strict enforcement. It does not dispense with the necessity of stating directly, or inferentially, the facts on which the pleader depends to secure the objects of his pleading. It does not throw on an adversary the hazard of correctly interpreting the meanings of a pleading, containing doubtful allegations, on one or the other of which such adversary might fairly act. But it does mean that allegations...