Spillane By Guardian v. Missouri Pacific Railway Company
| Decision Date | 10 October 1892 |
| Parties | Spillane by Guardian v. The Missouri Pacific Railway Company, Appellant |
| Court | Missouri Supreme Court |
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 St. 399; Nagle v. Railroad, 88 Pa. St. 35; Railroad v. Hutchinson, 120 Ill. 587; Plummer v. Railroad, 73 Me. 591; Cooper v. Railroad, 33 N.W. 306; Cahill v. Railroad, 18 S.W. 2. (6) The boy, at the time of the accident, was only eight years old; the same degree of care was not required of him as would have been required of an adult under similar circumstances. He was required to exercise that care and caution only which might be expected of one of his age and capacity. Eswin v. Railroad, 96 Mo. 290; Boland v. Railroad, 36 Mo. 484; Koons v. Railroad, 65 Mo. 592; Railroad v. Stout, 17 Wall. 657; Johnson v. Railroad, 8 Am. & Eng. R. R. Cases, 471. (7) Whether or not Dennis Spillane was exercising such care as might be expected of one of his age and capacity at the time of the accident, was a question of fact for the jury. Nagle v. Railroad, 75 Mo. 653; Tyler v. Railroad, 137 Mass. 238; Copeley v. Railroad, 136 Mass. 6; Houston v. Railroad, 34 Am. & Eng. R. R. Cases, 63; Lovett v. Railroad, 91 Mass. 557; Railroad v. Fitzsimmons, 22 Kan. 477; Barry v. Railroad, 92 N.Y. 289. (8) The damages are not excessive. Railroad v. Dorsey, 25 Am. & Eng. R. R. Cases, 446; Railroad v. Greenlee, 62 Tex. 344; Railroad v. Jones, 41 Am. & Eng. R. R. Cases, 363; Railroad v. Young, 19 Kan. 493; Henry v. Railroad, 75 Iowa 84; Ridenour v. Railroad, 13 S.W. 889. Unless it clearly appears that the verdict is the result of prejudice, passion or corruption, it will not be interfered with. Goetz v. Ambs, 27 Mo. 28; Bank v. York, 89 Mo. 369.
Plaintiff, an infant eight years of age, prosecutes this suit by his father and natural guardian to recover damages for personal injuries sustained by having been struck by a train on the defendant's road in Kansas City, by reason of the alleged negligence of the defendant's employes in charge thereof.
The negligence charged in the petition, and upon which the case was submitted to the jury was that the train was negligently run at a rate of speed in excess of six miles per hour, in violation of an ordinance of the city. Defendant demurred to the petition upon the ground, among others, that it did not appear that the father of plaintiff had given bond as guardian. The demurrer was overruled, and defendant answered over. The answer was a general denial of negligence, and pleas of contributory negligence of the plaintiff himself and of his parents. The answer also charged that the plaintiff had not the capacity to sue, and that his father and natural guardian had not given bond and qualified as guardian.
The trial disclosed the following undisputed facts: An ordinance of the city of Kansas City prohibited the movement of trains within the city limits at a greater rate of speed than six miles per hour. The defendant operated a railroad having four tracks along Front street, east and west, where the same is crossed by Grand avenue. The plaintiff lived with his parents on Grand avenue, about one block south of the railroad. He was a boy of ordinary intelligence, was attending school, had been engaged in selling papers and was familiar with the railroad tracks at Grand avenue.
Trains passed over the tracks across Grand avenue frequently during the day. Front street, along which the railroad tracks were laid, was covered with plank, and was used by wagons and pedestrians as a highway. The tracks west of Grand avenue were straight, and the view unobstructed for six hundred feet. On the occasion of the accident plaintiff's mother had sent him to an icehouse, situate north of the railroad and east of Grand avenue, to get some ice. He took a rope with him, went to the icehouse, procured a large lump of ice, tied the rope to it and proceeded in the way usually traveled diagonally across Front street and the railroad tracks southwesterly towards Grand avenue dragging the ice after him. He was struck by a freight train running from the west on the south track and was injured.
The evidence of plaintiff tended to prove that the train was running twenty miles per hour, and that a wagon crossing the track obstructed the view so that plaintiff could not see the approaching train.
The evidence of defendant tended to prove that the train was not running to exceed five miles per hour; that the plaintiff was not on the track as the train approached, and that the boy was on one side the track and the ice the other, and the rope was caught by the train, and by that means plaintiff was pulled under it. Plaintiff admitted on cross-examination that he did not look or listen for a train before going on the track. He claimed that he did not see the train before it struck him, and did not know by what part he was struck.
The verdict and judgment were for plaintiff, and defendant appealed.
I. The first assignment of error upon which the plaintiff relies for a reversal is that the suit could not be maintained in the name of the father of plaintiff as his natural guardian, unless he had first qualified as such by giving bond.
The statute provides that "suits by infants may be commenced and prosecuted" by the guardian or curator (sec. 1998) and that the father shall be the natural guardian and curator of his children, and have the care and custody of their estates;...
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