Berry v. St. Louis, M. & S. E. R. Co.

• Decision Date: 25 November 1908
• Citation: 214 Mo. 593,114 S.W. 27
• Court: Missouri Supreme Court
• Parties: BERRY v. ST. LOUIS, M. & S. E. R. CO.

114 S.W. 27

214 Mo. 593

BERRY v. ST. LOUIS, M. & S. E. R. CO.

Supreme Court of Missouri, Division No. 1.

November 25, 1908.

1. APPEAL AND ERROR (§ 934)—PRESUMPTIONS —JUDGMENT—REGULARITY.

The presumption is in favor of the regularity of a judgment of a court of general jurisdiction, in the absence of a contrary showing in the record.

2. APPEAL AND ERROR (§ 927) — PRESUMPTIONS —FACTS NOT SHOWN BY RECORD—DISMISSAL.

Where an action was originally begun against two defendants, but no judgment was rendered against one of them, and no proof was offered to show its liability, it will be presumed on appeal that the action was dismissed as to such defendant, or that such steps were taken so as to make the judgment against one of the defendants, alone, regular.

[114 S.W. 28]

3. TORTS (§ 22)—JOINT TORT-FEASORS—LIABILITY.

One of several joint wrongdoers who has taken any part in the execution or planning of the wrongful act is liable for the entire injury resulting therefrom.

4. APPEAL AND ERROR (§ 1170)—DISPOSITION OF CAUSE—REVERSAL—TRIVIAL ERRORS.

Under the direct provisions of Rev. St. 1899, § 865 (Ann. St. 1906, p. 812), the Supreme Court can reverse a judgment only when error was committed below which materially affected the merits of the action.

5. APPEAL AND ERROR (§ 1170)—DISPOSITION OF CAUSE—TRIVIAL ERRORS.

In an action against two joint wrongdoers, only one of whom appealed from a judgment, it was immaterial whether or not the action was dismissed below as to the other, or, if not dismissed, whether such defendant was made a party on appeal, since defendant's liability was not affected thereby.

6. PLEADING (§ 374)—ANSWER—GENERAL DENIAL —EFFECT.

The general rule is that a general denial requires plaintiff to prove all the essential allegations of the petition.

7. PLEADING (§ 129) — ANSWER — GENERAL DENIAL—SCOPE.

Where the petition alleges that a certain person is plaintiff's duly qualified next friend, and the averment is not specifically denied, it is taken as admitted, though no proof is introduced to sustain it as the validity of the appointment cannot be raised by general denial.

8. DAMAGES (§ 132)—EXCESSIVE DAMAGES— PERSONAL INJURIES.

Where a child's ankle was smashed because of injuries received while playing on a turntable, and all of the bones of his leg immediately above the ankle were splintered, his foot being connected with his leg only by a ligament, so that he will be a deformed cripple for life, a verdict of $6,583.33 was not excessive.

9. NEGLIGENCE (§ 136)—CONTRIBUTORY NEGLIGENCE OF CHILD—APPLICATION OF DOCTRINE.

As a general rule, whether a child can be guilty of contributory negligence is for the jury, but he may be of such age and maturity of judgment that the court could say as a matter of law that he could be guilty of contributory negligence, while under some circumstances the court might hold as a matter of law that a child could not be guilty of contributory negligence.

10. NEGLIGENCE (§ 136)—INJURIES TO CHILD —CONTRIBUTORY NEGLIGENCE.

In an action against a railroad for injuries to a child while playing on a turntable, the child, being only four years old, and having been taken to the table by other children, could not as a matter of law be guilty of contributory negligence.

11. PARENT AND CHILD (§ 7)—INJURIES TO CHILDREN—ACTIONS — CONTRIBUTORY NEGLIGENCE.

In an action by a parent, suing in his own right, for injuries to his child, contributory negligence of the parent causing the injury will bar a recovery.

12. NEGLIGENCE (§ 94)—CONTRIBUTORY NEGLIGENCE — IMPUTED NEGLIGENCE — NEGLIGENCE OF PARENT IMPUTED TO CHILD.

In an action by a child for injuries to itself, the contributory negligence of the parent may not be imputed to the child so as to bar a recovery.

13. APPEAL AND ERROR (§ 1033)—HARMLESS ERROR—FAVORABLE TO COMPLAINING PARTY.

One may not object on appeal that an instruction was more favorable to him than the law justified.

14. NEGLIGENCE (§ 33)—USE OF LAND—CARE AS TO TRESPASSERS.

As a general rule a landowner owes no duty to trespassers or volunteers going upon his land to maintain it in a particular condition for their benefit or safety.

15. NUISANCE (§ 72) — PUBLIC NUISANCES— RIGHT OF ACTION—INJURY TO INDIVIDUAL.

One injured in a particular manner not common with the public by the maintenance of a public nuisance may maintain an action for such injuries.

16. NEGLIGENCE (§ 23)—INJURIES TO CHILDREN —TURNTABLE CASE.

Where a railroad permits a turntable to be left unlocked and unguarded in a public neighborhood where children would be likely to play, and permits them to play on the turntable, it, in effect, invites the children to play on it, and is liable for injuries to such children, though they were trespassers at the time.

Appeal from Circuit Court, Butler County; W. N. Evans, Judge.

Action by Cecil Berry, by his next friend, David W. Hill, against the St. Louis, Memphis & Southeastern Railroad Company. From a judgment for plaintiff, defendant appealed. Affirmed.

W. F. Evans and James Orchard, for appellant. N. C. Whaley and David W. Hill, for respondent.

LAMM, J.

In the Butler circuit court, Cecil, a child of four years, sued by his next friend in an action sounding in tort. He had judgment for $6,583.33, for personal injuries received on defendant's turntable. Failing to get a new trial or arrest the judgment, defendant appeals.

1. The St. Louis & San Francisco Railroad Company was made a codefendant at the institution of the suit. Appellant insists that the cause was not dismissed as to its said codefendant; contra, respondent insists it was so dismissed prior to submission. Appellant's abstract does not show a dismissal; neither does it purport to be a full transcript of all the record entries; neither does respondent furnish a counter or additional abstract. In this fix, with no claim that a full transcript of the record entries is here, and with no counter abstract furnished, the parties litigant assert, in their respective statements of the case, on the one hand there was no such dismissal, and on the other that there was a dismissal.

The record sufficiently shows the St. Louis & San Francisco Railroad Company took no appeal. It shows affirmatively that no judgment was rendered against it, that there was no proof offered tending to show Cecil was injured through its negligence, or that it owned or operated the railroad to which the turntable was appurtenant. The instructions show that no issue was submitted to the jury touching the liability of the St. Louis & San Francisco Railroad Company. To the contrary, the issues submitted involved appellant by name, and appellant only. As we see it, while appellant complains in its statement of the above condition of the record, yet it does not in its brief proper press the point as reversible error. However, if it does, the position is unsound, because: (a) Absent a record showing one way or the other, the presumption is in favor of the regularity of the judgment of a court of general jurisdiction, i. e., a dismissal would be presumed, or that such antecedent steps were taken as made a judgment against one of two defendants regular. (b) Moreover, at the very worst, on the record before us the matter complained of does not a particle affect the rights of the appellant on the merits of the case. If it is liable at all, it is liable for the whole harm done the child. Therefore, the presence or absence of its codefendant as a party to the judgment or to the suit cuts no figure on the merits; for it is primer law that if A. and B. negligently injure C., C. may recover his damages from one or the other or both. Newcomb v. R. R., 169 Mo. 409, 69 S. W. 348. "A person," says Bishop (Bishop on Noncontract Law, § 573), "who has done any part of a wrong working harm to another, or even contributed his will to do it, is responsible to him in damages for the entire harm, however many other individuals, forces, and things may have co-operated in bringing about the mischief." Neff v. City of Cameron (not yet officially reported) 111 S. W., loc. cit. 1141 et seq.

The matter complained of is no concern of appellant; it causes its liability to neither shrink nor swell, wax nor wane. It impairs appellant's defenses not a whit. It is ordained by statute that only harmful error will work a reversal. Before we can reverse a judgment, we must "believe that error was committed by such court against the appellant or plaintiff in error, and materially affecting the merits of the action." Rev. St. 1899, § 865 (Ann. St. 1906, p. 812). Not believing such to be the case, the point, if point it be, is ruled against appellant.

2. As one ground for arresting the judgment, it was alleged in the motion for arrest there was no proof offered that the Honorable David W. Hill was duly appointed next friend. This is so. Appellant assigns error in overruling the motion in arrest. Counsel do not press the point in hand as reversible error, as we gather from their brief. But if we are mistaken in this, there is no soundness in it. This is so, because: The answer was a general denial, coupled with affirmative allegations not material to the question now up. With the pleadings in this fix, was there a call for respondent to prove the due appointment of his next friend? The answer to that query is, No. Undoubtedly the general rule is that a general denial puts plaintiff on his proof. But there are exceptions grafted on the stock of the general rule, and the particular in hand is controlled by one of them. In the philosophy of the science of pleading, the issue of the appointment of next friend cannot be raised by a mere general denial. If the defect struck at appears in the petition, it might (possibly) be raised by special demurrer. Otherwise, it should be raised by a special plea in the answer. Therefore, it is the established practice that where the petition alleges a given person is a lawfully appointed and duly qualified...