Baxter v. St. Louis Transit Company

• Decision Date: 20 June 1906
• Citation: 95 S.W. 856,198 Mo. 1
• Parties: ARTHUR BAXTER, by Curator, v. ST. LOUIS TRANSIT COMPANY, Appellant
• Court: Missouri Supreme Court

95 S.W. 856

198 Mo. 1

ARTHUR BAXTER, by Curator, v. ST. LOUIS TRANSIT COMPANY, Appellant

Supreme Court of Missouri

June 20, 1906

Appeal from Audrain Circuit Court. -- Hon. H. W. Johnson, Judge.

Affirmed.

Boyle & Priest, George W. Easley and Edward T. Miller for appellant.

(1) The demurrer to plaintiff's evidence should have been sustained. (a) There was no evidence of the appointment or qualification of a curator to maintain the suit, or that the suit was prosecuted by a curator. Porter v Railroad, 60 Mo. 160; Casler v. Chase, 160 Mo 424; Cohn v. Railroad, 182 Mo. 577. (b) If plaintiff or his fellow-servant, Davis, had looked or listened for the car it could have been seen and the injury would have been averted. That negligence directly contributed to the injury and should bar recovery. Neither was there any evidence that defendant was negligent. Becke v. Railroad, 102 Mo 550; Dickson v. Railroad, 104 Mo. 504; O'Rourke v. Railroad, 142 Mo. 352; Payne v. Railroad, 129 Mo. 419; Watson v. Railroad, 133 Mo. 250; Peterson v. Railroad, 156 Mo. 552; Holwerson v. Railroad, 157 Mo. 216; Davies v. Railroad, 159 Mo. 1; Tanner v. Railroad, 161 Mo. 497; Hook v. Railroad, 162 Mo. 569; Moore v. Railroad, 176 Mo. 528; Ries v. Railroad, 179 Mo. 1; McGauley v. Railroad, 179 Mo. 583; Petty v. Railroad, 179 Mo. 666; Reno v. Railroad, 180 Mo. 369; Roenfeldt v. Railroad, 180 Mo. 554; Markowitz v. Railroad, 186 Mo. 350; Holden v. Railroad, 76 S.W. 973; Bricknell v. Railroad, 120 N.Y. 290; Miller v. Railroad (Ind.), 27 N.E. 359; Donnelly v. Railroad, 109 N.Y. 16; Griffith v. Railroad, 44 F. 574; Stafford v. Oskaloosa, 57 Iowa 749; Miner v. Railroad, 153 Mass. 398; Schorn v. Railroad (N. Y.), 3 Am. Neg. Rep. 62; Railroad v. Kestler, 12 Am. Neg. Rep. 343; Nesbitt v. Town of Garner, 75 Iowa 304; Borough of Carlisle v. Brisbane, 113 Pa. St. 552; McCormack v. Railroad (N. Y.), 2 Am. Neg. Rep. 631; Shear. and Redf. on Negligence (2 Ed.), sec. 66a, note 1. (2) The court erred in giving plaintiff's instruction 1. Holwerson v. Railroad, 157 Mo. 216; Tanner v. Railroad, 161 Mo. 497; Moore v. Railroad, 176 Mo. 528; Reno v. Railroad, 180 Mo. 469; Roenfeldt v. Railroad, 180 Mo. 554; Markowitz v. Railroad, 186 Mo. 350; also authorities under point 1. (3) The court erred in giving plaintiff's instruction 2. Authorities cited under points 1 and 2. (4) The court erred in giving plaintiff's instruction 3. Authorities cited under point 5, infra. (5) Plaintiff's instruction 5 is erroneous. Daugherty v. Railroad, 19 Mo.App. 418; Brown v. Railroad, 20 Mo.App. 222; Kincaid v. Railroad, 62 Mo.App. 371; Siekinger v. Manufacturing Co., 129 Mo. 590; Hadley v. Transfer Co., 115 Mass. 308; Lynn Gas Co. v. Ins. Co., 158 Mass. 570; Railroad v. Johnson, 92 Ala. 204; Haley v. Railroad, 21 Ia. 15; Railroad v. Rose, 11 Neb. 177; Railroad v. Valleley, 32 Ohio St. 345; Railroad v. Spirk, 70 N.W. 926; Hadley v. Boxendale, 9 Exch. 341; Pullman Car Co. v. Barker, 4 Colo. 344; Frazier v. Railroad, 81 Ala. 185; Butler v. Kent, 19 Johns. 228; Sheffer v. Railroad, 105 U.S. 252; Hobbs v. Railroad, 10 L. R. Q. B. 111; Cooley on Torts, (2 Ed.), pp. 73, 74; 1 Sutherland, Damages, 62; 1 Chitty on Pleadings, 388. (6) Plaintiff's instructions are repugnant to those given on behalf of defendant and are irreconcilably inconsistent therewith.

James M. Sutherland for respondent.

(1) Defendant did not properly raise the issue by answer, hence it was not necessary for plaintiff to prove the appointment of a curator. Taylor v. Pullen, 152 Mo. 439; Rogers v. Marsh, 73 Mo. 70; Clowers v. Railroad, 21 Mo.App. 216; Randolph v. Railroad, 18 Mo.App. 614; Lyddon v. Dose, 81 Mo.App. 69; Jones v. Steel, 36 Mo. 325; Sherman v. Railroad, 72 Mo. 63. (2) "Where from the facts found or agreed upon, the question of negligence is one about which reasonable minds may differ, it should be left to the jury to make the deduction from all the circumstances, to determine the ultimate fact." Tabler v. Railroad, 93 Mo. 79; Barry v. Railroad, 98 Mo. 62; Pierce on Railroads, p. 316; Dickson v. Railroad, 104 Mo. 495. The negligence of the driver in this case, he not being in the employ under the control of plaintiff, cannot be imputed to plaintiff. This seems to be now the settled doctrine in England and the United States. Becke v. Railroad, 102 Mo. 544; Land Co. v. Mingea, 89 Ala. 521; Borough of Carlisle v. Brisbane, 113 Pa. St. 552; Mills v. Armstrong, L. R. 13 App. Cas. 1. There is no question raised either in the pleadings or evidence that defendant's servants could not have stopped the car to have avoided a collision, but on the contrary defendant especially evades this issue by stating that the wagon "suddenly turned in toward the track when the car was so close they could not avoid a collision." Klockenbrink v. Railroad, 81 Mo.App. 351; McAndrews v. Railroad, 83 Mo.App. 233, 98 Mo.App. 97; O'Keefe v. Railroad, 81 Mo.App. 386; Cooney v. Railroad, 80 Mo.App. 226; Morgan v. Railroad, 159 Mo. 262; Hutchison v. Railroad, 88 Mo.App. 376; Edwards v. Railroad, 94 Mo.App. 91; Meyers v. Railroad (Mo. App.), 73 S.W. 379. (3) The plain reading of defendant's first instruction leaves the question of plaintiff's negligence to the jury. When the instruction is read with 7, 8, 9, 10, 11, and 12, given in behalf of defendant, the jury must have had a very clear idea as to what constitutes negligence on the part of plaintiff. (4) The defendant submitted the question of the re-breaking of the leg to the jury in instructions 2, 3, 4 and 5. There the jury were plainly told by the court that if there had been even a partial bony union and the second breaking was the result of plaintiff's negligence, then he could recover no damages by reason of such re-breaking.

OPINION

In Banc

VALLIANT J.

-- Plaintiff, a minor, received personal injuries in a collision with a street car which was being operated by defendant and sues to recover damages for the injuries, alleging that the collision was the result of the negligent operating of defendant's street car. He recovered a judgment for $ 4,750, and defendant appealed.

I. Before entering into a consideration of the merits of the case there is a question at the threshold that demands our attention.

The petition alleges that the plaintiff is a minor and that the St. Louis Trust Company, by whom as his curator he sues, is his legally appointed and duly qualified curator, that the defendant is a corporation operating a street railroad, then it proceeds to state the cause of action. The answer of the defendant was a general denial and a plea of contributory negligence. At the trial there was no proof of the appointment of the alleged curator. It is contended by defendant that the failure of proof on that point is fatal to the plaintiff's right of recovery.

At common law the character in which the plaintiff sued was not put in issue unless specially denied. [1 Chitty on Pl. (16 Am. Ed.), p. 464.] In such case a special denial was in the nature of a plea in abatement. [Stephens on Pl. (1894), p 467.] Such a plea, if sustained, did not bar the cause of action, but abated that suit. The character in which the plaintiff assumes to sue is entirely distinct from the cause of action alleged; for example, a plaintiff assuming to be the administrator sues to recover a debt due the estate, he may not be the administrator and therefore not entitled to maintain the suit, yet a judgment that the plaintiff in that suit is not the administrator would be no bar to an action to recover the same debt when the true administrator should sue. And that is as true under our Code of Procedure as it was at common law. In so far as the science of pleading rests on sound reason for its rules there is no difference between our system and the system of common law pleading, the conclusions of reason and common sense are the same, but in each system there are arbitrary rules and the difference between the two systems appears in those rules. For example, it is neither illogical nor unreasonable, nor a violation of any scientific principle, to allow a defendant to plead in abatement of the suit and in bar of the action at the same time; there is nothing inconsistent or contradictory in those pleas with each other, both may be true or one may be true and the other not, and there is no difficulty in shaping the judgment to suit the facts as they may be found on the trial. Yet the common law rule is that the two pleas cannot stand together, but under the Code system the defendant not only may but is required to plead them both in one answer if he intends to avail himself of both. The rule on this point is thus stated in Bliss on Code Pleading (3 Ed.), sec. 345: "In common law pleading we have the rule that 'pleas must be pleaded in due order;' that is, the dilatory pleas must be first made and disposed of, to be followed by pleas in bar. The Code requires the defendant either to demur or answer, and in his answer he is allowed to set up as many defenses as he may have. Only one answer is contemplated, and all the defenses which he elects to make must be embraced within it." Matters in abatement and matters in bar are as essentially different under the one system as under the other, and the effect of matters in abatement is the same under both systems, that is, if the plea is sustained it abates that suit without affecting the cause of action, the only difference is that at common law it is called a plea in abatement and must be disposed of before defendant pleads to the merits of the action, while under the Code it goes under the general name of defense and may be pleaded in the same answer with a plea to the merits. The author just quoted, discussing the effect of an insufficient statement in the petition of the character in which the...