20 S.W. 293 (Mo. 1892), Spillane By Guardian v. Missouri Pacific Railway Company

Citation:20 S.W. 293, 111 Mo. 555
Opinion Judge:Macfarlane, J.
Party Name:Spillane by Guardian v. The Missouri Pacific Railway Company, Appellant
Attorney:Elijah Robinson for appellant. Fyke & Hamilton for respondent
Case Date:October 10, 1892
Court:Supreme Court of Missouri
 
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Page 293

20 S.W. 293 (Mo. 1892)

111 Mo. 555

Spillane by Guardian

v.

The Missouri Pacific Railway Company, Appellant

Supreme Court of Missouri, Second Division

October 10, 1892

Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.

Reversed and remanded.

Elijah Robinson for appellant.

(1) The father, as natural guardian, could not maintain this suit. Revised Statutes, 1889, sec. 5279; McCarty v. Rountree, 19 Mo. 345; Morris v. Railroad, 58 Mo. 78; Sherwood v. Neal, 41 Mo.App. 416. (2) The court should have directed a verdict for defendant. Dennis Spillane, if on the track where he received his injury, did not exercise that degree of care which was incumbent on one of his years and intelligence. Tucker v. Railroad, 124 N.Y. 308. (3) The plaintiff's instruction, numbered 2, was erroneous, and should not have been given. The court could not, under the facts of this case, tell the jury that going on the railroad track at the time and place of the accident was not such contributory negligence as would prevent a recovery. Wilmott v. Railroad, 106 Mo. 535. (4) Plaintiff's instruction, numbered 3, should not have been given. The evidence showed clearly that Dennis Spillane was not, at the time of the accident, exercising such care as might be expected of one of his age and capacity. Tucker v. Railroad, 124 N.Y. 308. Said instruction did not fairly submit to the jury the question as to whether the boy was exercising that care which would reasonably have been expected of one of his age, intelligence and experience. Williams v. Railroad, 96 Mo. 275; Eswin v. Railroad, 96 Mo. 290. (5) Plaintiff's instruction, numbered 4, was erroneous. It ignored altogether the question of negligence on defendant's part, and directed the jury to find for plaintiff if he was not guilty of contributory negligence. (6) The court erred in refusing defendant's instruction, numbered 3. If the boy had tied himself to the ice and left the ice on the track, or on the opposite side of the track, then there is no evidence, whatever, tending to show any connection between the rate of speed and the accident, and there was no testimony whatever tending to show any other negligence than the rate of speed. (7) The damages assessed were so excessive as to show that the verdict was the result of passion or prejudice. Sawyer v. Railroad, 37 Mo. 240; Adams v. Railroad, 100 Mo. 555; Gurley v. Railroad, 104 Mo. 211; Collins v. Council Bluffs, 35 Iowa 432; Rose v. Railroad, 39 Iowa 256; Potter v. Railroad, 22 Wis. 586.

Fyke & Hamilton for respondent

(1) Plaintiff properly brought suit by his father as natural guardian. Revised Statutes, 1889, secs. 1997, 2004, 5279, 5298. The claim in this case prior to reduction to judgment cannot be deemed property or estate. Perry v. Railroad, 29 Kan. 420. After verdict was rendered for plaintiff, the court made an order fixing the amount of bond to be given by the guardian, which was the proper practice. Temple v. Price, 24 Mo. 288; Jones v. Steele, 36 Mo. 324; Higgins v. Railroad, 36 Mo. 418, 431. (2) The defect as to want of plaintiff's capacity to sue appeared on the face of the petition and by answering over the objection was waived. State v. Sappington, 68 Mo. 454; Ware v. Johnson, 55 Mo. 500; Bulkley v. Co., 77 Mo. 105; Fuggle v. Hobbs, 42 Mo. 537; Scovill v. Glasner, 79 Mo. 449; Pickering v. Co., 47 Mo. 457; Rogers v. Tucker, 94 Mo. 346; St. Louis v. Anthony, 73 Mo. 431. (3) The court did not err in refusing to direct a verdict for defendant. The evidence fairly showed that the train was running at about twenty-five miles an hour, in violation of the ordinance of the city. The bell was not being rung, nor was the whistle sounded. The watchman, if at his post of duty at all, was derelict in his duty. The evidence makes a case of gross negligence on the part of defendant. Violation of an ordinance is negligence per se. Keim v. Railroad, 90 Mo. 314; Eswin v. Railroad, 96 Mo. 290; Karle v. Railroad, 55 Mo. 476; Maher v. Railroad, 64 Mo. 267; Bergman v. Railroad, 88 Mo. 678; Railroad v. Schuster, 35 Am. & Eng. R. R. Cases (Ky.) 407; Roberts v. Railroad, 2 S.E. (Va.) 518. (4) Plaintiff's instruction, numbered 2, is not erroneous. The plaintiff was not a trespasser, but was on a public thoroughfare where he had a right to be. Eswin v. Railroad, 96 Mo. 290, 297; Johnson v. Railroad, 49 Wis. 529. (5) A person is not bound, under all circumstances, to stop and look and listen before crossing railroad tracks in a street. McGowen v. Railroad, 67 N.Y. 417; Railroad v. Snider, 18 Ohio...

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