Otto v. St. Louis

• Decision Date: 02 May 1882
• Citation: 12 Mo.App. 168
• Parties: ANNA OTTO, Respondent, v. ST. LOUIS, IRON MOUNTAIN AND SOUTHERN RAILWAY COMPANY, Appellant.
• Court: Missouri Court of Appeals

12 Mo.App. 168

ANNA OTTO, Respondent,

v.ST. LOUIS, IRON MOUNTAIN AND SOUTHERN RAILWAY COMPANY, Appellant.

St. Louis Court of Appeals, Missouri.

May 2, 1882.

1. No question of the plaintiff's capacity to sue is raised upon a record which neither shows an allegation nor a denial of the plaintiff's minority, but which does show the appointment of a next friend.

2. A petition which describes the act which caused the injury, and alleges that it was negligently done, is sufficient.

3. The ground of complaint being negligence, a petition containing a general allegation of negligence without particularly specifying the facts constituting it, is not fatally defective.

4. If a party desires more explicit instructions than those given, he should ask for them; and want of explicitness is not ground for a reversal if the instructions are substantially correct.

5. It is not necessary, in an action for damages for injuries received while on the street, to show a formal acceptance of the dedication of the ground to public use.

6. If the street on which the accident occurred had been dedicated to public use as a street, and was in use as such at the time of the injury, the defendant's right thereon is not exclusive.

APPEAL from the St. Louis Circuit Court, ADAMS, J.

Affirmed.

BENNETT PIKE, for the appellant.

FINKELNBURG & RASSIEUR, for the respondent.

LEWIS, P. J., delivered the opinion of the court.

The petition in this case is as follows:--

“Plaintiff states that defendant is a body politic, duly incorporated by the state of Missouri, and engaged in the transportation of passengers and freight in cars propelled by steam, over certain lines of railway by it owned and controlled, between the city of St. Louis and points south thereof; that defendant uses its cars and locomotives within the limits of the city of St. Louis, and has constructed divers railway tracks across and along streets of said city, among others along Front Street, sometimes called Main Street, in the southern part of said city, which is a public street, highway, and thoroughfare of said city, dedicated to the use of its citizens.

Plaintiff states that, on the morning of the eighteenth day of June, 1880, while plaintiff, the said Anna, was walking along said Front or Main Street, between Clement and Bryan Streets, as she lawfully might do, defendant, in an unlawful manner, caused one of its locomotives and train of cars to be run and conducted along and over said Front or Main Street in so negligent, careless, and reckless a manner as to strike and run over plaintiff Anna, without any negligence on her part contributing thereto.

Plaintiff further states, that no bell was rung on said locomotive or train of cars while running over said public street, as so required by proper and prudent management, and that said train was permitted to run along said street at a much greater speed than six miles per hour, and without giving any signal or warning of its approach.

And plaintiff further states, that in wrongfully causing and permitting said cars to run along said public thoroughfare as aforesaid, defendant also violated the provisions of ordinance No. 10,305 of the city of St. Louis, entitled ‘An ordinance to regulate the speed, within the limits of the city of St. Louis, of cars and locomotives propelled by steam power,’ approved January 22, 1877, by which it is provided that when running within the limits of the city of St. Louis, the bell of the engine shall be constantly sounded.

Plaintiff states, that by reason of the neglect, careless and unlawful conduct of defendant in running said locomotive and cars against and over her as aforesaid, plaintiff was greatly and permanently injured in her body; that her head was severely wounded and injured; that she sustained great internal injuries; that her mind and reason have been affected; that she suffered great bodily pains, incurred expenditures for doctor's bills, medicines, and nurses, in the amount of $100, and has been permanently disabled from following any occupation in life, and deprived of the full use of her physical and mental faculties, wherefore plaintiff says she has been damaged in the sum of $10,000, for which sum she now prays judgment, and for her costs.”

The answer was a general denial, with the charge of contributory negligence in the plaintiff. The verdict was for the plaintiff in the sum of $1,500.

The defendant objects that “the petition alleged the minority of plaintiff, but did not allege the appointment of next friend, nor was there any proof of the same.” This seems to be a mistake. The petition nowhere, not even in the caption, alleges that the plaintiff is a minor. Such an allegation was not necessary. The record shows the due appointment of a next friend of the plaintiff, as a minor, and there was no more need for repeating the fact in the petition, than there would be for alleging the service of summons on the defendant. The facts, in either case, simply go to show the court's jurisdiction over the persons of the parties, and have otherwise nothing to do with the right of recovery. The plaintiff's personal right to sue is always presumed, until something is properly alleged against it by way of denial or otherwise. In Sherman v. Railroad Company (72 Mo. 62), the plaintiff's right to sue as guardian was distinctly put in issue by the answer. In Porter v. Railroad Company (60 Mo. 160), the plaintiff's minority and the appointment of a next friend were alleged in the petition, and denied in the answer. In either case the judgment was reversed, because the plaintiff had offered no proof to sustain his side of the issue. The question does not arise in this case, where there is neither allegation nor denial on the subject.

It is contended for the defendant that the plaintiff can have no right of recovery under the petition, unless it is shown that her injuries were directly caused by the failure of defendant's servants to ring a bell while the locomotive was running over the public street, or by the unlawful running of the train at a speed greater than six miles per hour. The point is made that, except as to these specific acts or omissions, the only charge in the petition is the general one of negligence in running and managing the train, which is too indefinite to warrant a recovery. The fault in this argument begins with the assumption that a mere general allegation of negligence, without the specific facts constituting it, whereby injury was caused to the plaintiff, must be fatally defective. The idea seems to be derived from a dictum in Waldhier v. Railroad Company (71 Mo. 514), where the question involved was not before the court. The petition in that case did contain the specific fact constituting the negligence which caused the damage, but the ground of reversal was a variance between the allegation and the proof, as elucidated by an instruction to the jury. If this be a binding authoriy for the defendant's general proposition, then the later decision in Edens v. Railroad Company (72 Mo. 212) is also an authority for the contrary. There, the petition contained only a general charge of ...