21 Mo.App. 213 (Mo.App. 1886)
D. L. CLOWERS, BY NEXT FRIEND, Respondent,
WABASH, ST. LOUIS & PACIFIC RAILROAD COMPANY, Appellant.
Court of Appeals of Missouri, St. Louis.
March 9, 1886
APPEAL from the St. Charles County Circuit Court, W. W. EDWARDS, Judge.
H. S. PRIEST, and GEORGE S. GROVER, for the appellant: There must be proof of the appointment of a next friend. Rev. Stat., sects. 3, 69, et seq.; Porter v. Railroad, 60 Mo. 162. The court gave improper instructions at the request of the plaintiff. Hoke v. Railroad, 11 Mo.App. 574; Lee v. Detroit B. & I. Works, 62 Mo. 565; Marshall v. Schricker, 63 Mo. 308; Rains v. Railroad, 71 Mo. 168; Weger v. Railroad, 55 Pa.St. 460; Keystone Bridge Co. v. Newberry, 96 Pa.St. 246; Feltham v. England, L. R. 2 Q. B. 32; Wilson v. Merry, L. R. 1 H. L. Scotch App. 326; Howells v. Lendore Steele Co., L. R. 10 Q. B. 62, 11 Moak 153; Lawler v. Railroad, 62 Me. 463; Albro v. Agawam Canal Co., 6 Cush. 75; O'Connor v. Roberts, 120 Mass. 227; Davis v. Railroad, 20 Mich. 105; Peschel v. Railroad, 17 Am. & Eng. R. Cas. 545, and cases cited in note on page 561. The court gave erroneous instructions of its own motion. Porter v. Railroad, 71 Mo. 67; Koenig v. Life Ass'n, 3 Mo.App. 596; Iron Mountain Bk. v. Murdock, 62 Mo. 70; Thomp. Charg. Jury, 100, and cases cited.
LACKLAND & WILSON, for the respondent: It was the defendant's duty to furnish and to keep in repair, safe and sound hand cars. 24 Am. Law Reg. 116; 20 Cent. Law J. 27; Lewis v. Railroad, 59 Mo. 495; Porter v. Railroad, 60 Mo. 160; Brothers v. Carter, 52 Mo. 376. A section foreman is not a fellow-servant of a laborer under him. Wilson v. William Linen Co., 50 Conn. 433; Siela v. Railroad, 82 Mo. 430; Gormly v. Vulcan Iron Works, 61 Mo. 492; Devany v. Vulcan Iron Works, 4 Mo.App. 236. The question of non-appointment of next friend can not be raised on general denial. Rogers v. Marsh, 73 Mo. 70.
The plaintiff, while in the defendant's employ as a laborer, was thrown from one of the defendant's hand cars, which passed over his prostrate body, inflicting serious injuries upon him, some of which are shown to be permanent in their nature. In this action, brought by next friend, to recover damages for such injury, he obtained a judgment for two thousand and five hundred dollars.
The negligence claimed as the...