Berry v. St. Louis, Memphis & Southeastern Railroad Company

• Decision Date: 25 November 1908
• Parties: CECIL BERRY, a Minor, by Next Friend, DAVID W. HILL, v. ST. LOUIS, MEMPHIS & SOUTHEASTERN RAILROAD COMPANY, Appellant
• Court: Missouri Supreme Court

114 S.W. 27

214 Mo. 593

CECIL BERRY, a Minor, by Next Friend, DAVID W. HILL, v. ST. LOUIS, MEMPHIS & SOUTHEASTERN RAILROAD COMPANY, Appellant

Supreme Court of Missouri, First Division

November 25, 1908

Appeal from Butler Circuit Court. -- Hon. W. N. Evans, Judge.

Affirmed.

W. F Evans and James Orchard for appellant.

(1) We are aware of the attitude this court has taken in turntable cases, and that it is negligence per se to leave a turntable unlocked or unguarded, for the reason that the same was attractive to children to go upon and play, and also the Supreme Court of the United States has in one case ruled the same way. The doctrine, though, as this Court has remarked heretofore, has been very much modified in most of the States and also in this State. Our position in this case is that the courts in the different States holding that doctrine have followed blindly the decision of the United States Supreme Court without giving any intelligent reason for so doing. We think the greater weight of authority is with the courts in the different States who have declared against the rule and think they give the best reasons for their finding, and that their finding is based on better reason and common sense. Barney v. Railroad, 126 Mo. 387; Ruschenberg v Railroad, 109 Mo. 112; Walsh v. Railroad, 145 N.Y. 301; Morrissey v. Prov. W. P. Co., 1 N.E. 806; Ostertag v. Railroad, 64 Mo. 421; Moran v Pullman Car Co., 134 Mo. 641; Overholt v. Vieth, 93 Mo. 422; White v. Stifel, 126 Mo. 295. (2) The negligence of parents in permitting or instructing children of tender years to go upon a turntable or any other dangerous place is negligence on the part of the parents, and such negligence is imputable to the child, and no recovery can be had. Stilson v. Railroad, 67 Mo. 671; 3 Elliott on Railroads, sec. 1259; Railroad Bill, 81 Ill. 76; Railroad v. Bockoven, 36 P. 322.

Nathaniel C. Whaley and David W. Hill for respondent.

(1) Defendant maintained the turntable unlocked and not otherwise secured, an attractive and dangerous machine in a populous place, adjoining public highways, where children frequented to play around and upon the table, to defendant's knowledge, and the defendant thus failed to exercise that care which ought reasonably to be expected from an ordinarily prudent person under the same circumstances, and is therefore liable. 2 Thompson, Negligence, sec. 1827; Watson on Damages, sec. 235; Webb's Pollock on Torts, pp. 46, 47, 48, 565 and 566; Whitaker's Smith on Negligence, p. 63, and note; Nagel v. Railroad, 75 Mo. 653; Koons v. Railroad, 65 Mo. 592; Dwyer v. Railroad, 12 Mo.App. 597; Newcomb v. Railroad, 169 Mo. 428; Kelley v. Parker-Washington Co., 107 Mo.App. 494; Railroad v. McDonald, 152 U.S. 262; Railroad v. Stout, 17 Wall. (U.S.) 657; Barrett v. Railroad, 91 Cal. 296; Callahan v. Railroad, 92 Cal. 89; Ferguson v. Railroad, 75 Ga. 637; Railroad v. Fitzsimmons, 43 La. Ann. 63; Keffe v. Railroad, 21 Minn. 207; Bridger v. Railroad, 27 S.C. 456; Evanisch v. Railroad, 57 Tex. 126; Railroad v. Styron, 66 Tex. 421; Railroad v. McWhirter, 77 Tex. 356; Brinkley Car Co. v. Cooper, 60 Ark. 545; City of Pekin v. McMahon, 154 Ill. 141; Siddall v. Jansen, 168 Ill. 43; Penso v. McCormack, 125 Ind. 116; Price v. Water Co., 58 Kan. 551; Bransom's Admr. v. Labrot, 81 Ky. 638; Powers v. Harlow, 53 Mich. 507; Mackey v. City of Vicksburg, 64 Miss. 777; Harriman v. Railroad, 45 Ohio 11. (2) The plaintiff having been of such tender age (four years), the law conclusively presumes him incapable of discretion, and refuses to impute to him contributory negligence. Fink v. Furnace Co., 10 Mo.App. 75. (3) The fact that another child revolved the turntable does not relieve the appellant who failed to use due care in locking or otherwise securing the table. Nagel v. Railroad, 75 Mo. 661; Becke v. Railroad, 102 Mo. 547; Stotler v. Railroad, 200 Mo. 143.

OPINION

LAMM, J.

In the Butler Circuit Court, Cecil Berry, a child of four years, sued by his next friend in an action sounding in tort. He had judgment for $ 6,583.33, for personal injuries received on defendant's turntable. Failing to get a new trial or arrest the judgment, defendant appeals.

I. The St. Louis & San Francisco Railroad Company was made a codefendant at the institution of the suit. Appellant insists that the cause was not dismissed as to its said codefendant; contra, respondent insists it was so dismissed prior to submission. Appellant's abstract does not show a dismissal, neither does it purport to be a full transcript of all the record entries; neither does respondent furnish a counter or additional abstract. In this fix, with no claim that a full transcript of the record entries is here and with no counter abstract furnished, the parties litigant assert, in their respective statements of the case, on the one hand there was no such dismissal and on the other that there was a dismissal.

The record sufficiently shows the St. Louis & San Francisco Railroad Company took no appeal. It shows affirmatively that no judgment was rendered against it, that there was no proof offered tending to show Cecil was injured through its negligence or that it owned or operated the railroad to which the turntable was appurtenant. The instructions show that no issue was submitted to the jury touching the liability of the St. Louis & San Francisco Railroad Company. To the contrary, the issues submitted involved appellant by name, and appellant only.

As we see it, while appellant complains in its statement of the above condition of the record, yet it does not in its brief proper press the point as reversible error. However, if it does, the position is unsound; because:

(a) Absent a record showing one way or the other, the presumption is in favor of the regularity of the judgment of a court of general jurisdiction -- i. e., a dismissal would be presumed, or that such antecedent steps were taken as made a judgment against one of two defendants regular.

(b) Moreover, at the very worst on the record before us the matter complained of does not a particle affect the rights of the appellant on the merits of the case. If it is liable at all it is liable for the whole harm done the child. Therefore, the presence or absence of its codefendant as a party to the judgment or to the suit cuts no figure on the merits; for it is primer law that if A and B negligently injure C, C may recover his damages from one or the other or both. [Newcomb v. Railroad, 169 Mo. 409, 69 S.W. 348.] "A person," says Bishop (Bishop on Non-Contract Law, sec. 573) "who has done any part of a wrong working harm to another, or even contributed his will to do it, is responsible to him in damages for the entire harm, however many other individuals, forces and things may have co-operated in bringing about the mischief." [Neff v. City of Cameron, 213 Mo. 350, 111 S.W. 1139.]

The matter complained of is no concern of appellant, it causes its liability to neither shrink nor swell, wax nor wane. It impairs appellant's defenses not a whit. It is ordained by statute that only harmful error will work a reversal. Before we can reverse a judgment, we must "believe that error was committed by such court against the appellant or plaintiff in error, and materially effecting the merits of the action." [R. S. 1899, sec. 865.]

Not believing such to be the case, the point, if point it be, is ruled against appellant.

II. As one ground for arresting the judgment, it was alleged in the motion for arrest there was no proof offered that the Hon. David W. Hill was duly appointed next friend. This is so. Appellant assigns error in overruling the motion in arrest. Counsel do not press the point in hand as reversible error, as we gather from their brief. But if we are mistaken in this, there is no soundness in it. This is so, because:

The answer was a general denial coupled with affirmative allegations not material to the question now up. With the pleadings in this fix, was there a call for respondent to prove the due appointment of his next friend? The answer to that query is, No. Undoubtedly the general rule is that a general denial puts plaintiff on his proof. But there are exceptions grafted on the stock of the general rule and the particular in hand is controlled by one of them. In the philosophy of the science of pleading, the issue of the appointment of next friend cannot be raised by a mere general denial. If the defect struck at appears in the petition it might (possibly) be raised by special demurrer. Otherwise, it should be raised by a special plea in the answer. Therefore, it is the established practice that where the petition alleges a given person is a lawfully appointed and duly qualified next friend and there is no specific denial of that averment, it will be taken as admitted. This is so whether proof was introduced to sustain it or not. The precise question, once mooted and for a season troublesome, was exhaustively considered and finally settled and put at rest In Banc in Baxter v. Railroad, 198 Mo. 1, 95 S.W. 856 (q. v.).

The point is ruled against appellant.

III. There is no question raised on the pleadings. There is no question made on the size of the verdict. If defendant is liable at all, the compensation awarded was little enough. Cecil's right ankle was smashed. All the bones of the leg immediately above the ankle were splintered. The foot was left connected with the leg by a mere ligament, or strip of flesh. The injury was such a capital one that a perfect union of the bones was not formed and he is left a deformed cripple for life. Moreover, there is (and could be) no question raised of the contributory negligence of the child. A child may be of such an age that whether he is or can be guilty of negligence under the...