Fink v. Kansas City Southern Ry. Co.

• Decision Date: 05 February 1912
• Citation: 143 S.W. 568
• Parties: FINK v. KANSAS CITY SOUTHERN RY. CO.
• Court: Missouri Court of Appeals

143 S.W. 568

FINK v. KANSAS CITY SOUTHERN RY. CO.

Springfield Court of Appeals. Missouri.

February 5, 1912.

1. INFANTS (§ 95)—ACTION—ADMISSIONS BY GUARDIAN OR ATTORNEY—PLEADING.

The representative of an infant, whether guardian or attorney, being unable to bind the infant by admissions in his pleadings, and the infant himself being incapable of making an admission which can affect his rights, a former pleading filed by an infant by his next friend in a suit for injuries in which a different state of facts than those proved at the trial was alleged was not admissible as an admission against the infant.

2. TRIAL (§ 139)—FINDING OF JURY—QUESTION OF LAW OR FACT.

There must be some substantial evidence tending to establish circumstances from which the jury will be warranted in finding that the inferences clearly preponderate as to the defendant's liability, or the question becomes one of law for the court.

3. NEGLIGENCE (§ 121)—BURDEN OF PROOF.

Where the petition charges negligence, plaintiff has the burden of proof.

4. NEGLIGENCE (§ 121) — PRESUMPTIONS — GROUNDS.

While negligence can be inferred from facts proved, the facts from which the inference is to be drawn must be themselves proved, and cannot be presumed.

5. APPEAL AND ERROR (§ 999)—REVIEW—QUESTIONS OF LAW OR FACT.

Before an appellate court can consider the question of negligence in an action for injuries, it must determine that the facts are indisputable, and that but one legitimate legal inference may be drawn from them.

6. RAILROADS (§ 282) — INJURIES TO TRESPASSERS —QUESTION FOR JURY.

In an action for injuries to a child by being run over while alighting from a moving freight car, whether he was frightened into alighting under dangerous circumstances by the harsh command of defendant's brakeman, and the causal connection between the brakeman's act in threatening plaintiff and the injury, held for the jury.

7. NEGLIGENCE (§ 121) — PLURALITY OF CAUSES—BURDEN OF PROOF.

Where there are two causes which might have resulted in an injury, the burden is on plaintiff to show with reasonable certainty which of the two produced the injury, so that if it appears that it resulted from either of two causes, for one of which defendant was liable and for the other of which he was not liable, plaintiff is then bound to offer sufficient evidence to enable the jury to trace the causal connection between defendant's negligence and the injury.

8. TRIAL (§ 156)—QUESTIONS OF LAW OR FACT.

In disposing of a demurrer to the evidence, defendant's evidence, so far as it contradicts plaintiff's evidence, fills no office, since plaintiff's evidence must be taken as true, with every reasonable and favorable inference naturally deducible therefrom, or from the uncontradicted evidence, and if, when so considered, the testimony makes a prima facie case, the demurrer should be overruled.

9. RAILROADS (§ 278) — TRESPASSERS — PERSONS ON CARS—CHILDREN — CONTRIBUTORY NEGLIGENCE.

If the servants of defendant's railroad, after acquiring knowledge of the perilous situation of plaintiff, a boy 10 years of age riding on the side of one of defendant's cars, by failing to exercise ordinary care for his safety, caused his injury, defendant would be liable, notwithstanding the plaintiff's contributory negligence.

10. RAILROADS (§ 282) — INJURIES TO CHILDREN — CONTRIBUTORY NEGLIGENCE — INSTRUCTIONS.

Since it is the capacity, and not the age alone, of an infant that is the criterion of his responsibility for negligence, an instruction in an action for injuries to an infant that if plaintiff, in attempting to dodge an assault and while in the exercise "of such care as a person of his age at that time ordinarily exercises," slipped and fell from the train while it was in rapid motion, etc., and was injured, he was entitled to recover, was erroneous.

11. RAILROADS (§ 281)—INJURIES TO TRESPASSERS —EJECTION.

A railroad company is liable to one who is stealing a ride on its freight cars, if he is injured by being caused to alight, in obedience to the order of the brakeman, while the train is moving rapidly; the brakeman being authorized to put him off and able to enforce his order.

12. NEGLIGENCE (§ 119)—ISSUES AND PROOF.

While the petition in an action for damages for negligence need only state the negligence in general terms, yet if it goes farther, and unnecessarily charges specific acts of negligence which caused the injury, plaintiff may not treat such allegations as surplusage, but must prove the negligence as alleged.

13. APPEAL AND ERROR (§ 1068)—REVIEW— HARMLESS ERROR.

A judgment will not be reversed because of error in the chief instruction for plaintiff, if the facts show that plaintiff was entitled to recover.

14. APPEAL AND ERROR (§ 1031)—REVIEW— THEORY OF CAUSE.

A case on appeal must be disposed of on the same theory on which it was tried below, and, in case of error in the instruction, the court will not assume that the verdict would have been the same, had the jury been properly instructed.

15. TRIAL (§ 329)—THEORY OF CAUSE—ISSUES.

A verdict cannot be sustained on a theory that was not submitted to the jury.

16. APPEAL AND ERROR (§ 1031)—PREJUDICE —PRESUMPTION.

Errors apparent in the record raise the presumption that they are material and affected the merits, unless the record affirmatively shows the contrary.

Appeal from Circuit Court, Jasper County; David E. Blair, Judge.

Action by Clarence Fink, by his next friend, Louis Fink, against the Kansas City Southern Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Cyrus Crane, J. W. McAntire, and O. L. Cravens, for appellant. F. H. Lee and Thomas & Hackney, for respondent.

NIXON, P. J.

The respondent, a boy 10 years of age, sued the appellant by his father as next friend for damages on account of personal injuries received on May 19, 1910, in the yards of the defendant company at Joplin, one of defendant's trains having run over and crushed his leg in such a way that amputation was necessary. The trial resulted in a verdict in favor of the plaintiff in the sum of $2,500, and the defendant has appealed.

The negligent acts of the defendant as charged in the petition were, in effect, as follows: That the plaintiff having jumped upon the ladder of one of defendant's freight cars in its yards in Joplin, the train of which said car was a part was put in rapid motion, and that in consequence of the rapid motion plaintiff held to the car until the speed of the train should be so slackened that the plaintiff could dismount with reasonable safety, and that while plaintiff was in said position on said car, and while it was dangerous for him to get off because of the speed at which said car was running, the brakeman of the defendant in the course of his employment for the defendant in the operation of said train, having knowledge of the perilous condition of the plaintiff and of the danger of plaintiff being put off or attempting to get off of said train while in such rapid motion, negligently, carelessly, willfully, recklessly, and cruelly assaulted the plaintiff and threw at plaintiff a large substance or missile which had the appearance of a large stone, and negligently, carelessly, willfully, and recklessly commanded and directed the plaintiff to get off of said train while the same was in rapid motion as aforesaid, and that the plaintiff, being of tender years, was so terrified and frightened by said assault and by the throwing of said substance and missile, and by the command of the said employé, that he attempted to dodge from said assault and the throwing of said missile, and in so doing plaintiff slipped and fell from said train while the train was in rapid motion as aforesaid, and fell under said train, and one of the cars of said train struck the plaintiff, and ran over and crushed and mangled his right leg and ankle.

Several witnesses were introduced by the plaintiff; among others, Hazel Adams, who testified: That she was in the defendant's railroad yards at Joplin at the time the accident occurred, and that she saw the plaintiff down on the railroad track at the time he was injured. That he had his hand and one foot on a railroad box car, and that the man who was on the car in front of said box car threw a handful of gravel at him. That the boy fell, and one of his feet went under the train and was run over. That the man who threw at him was a brakeman, who was standing on a flat car, and that he got the gravel on the car. That he shouted to the boy just before he threw, but she did not know what he said. That he just picked up some gravel and threw it at the boy, and hallooed and the boy fell off the train. That the train was moving at the time, going towards the depot. The evidence further tended to show that the boy had boarded the train and was riding on the ladder on the freight car in question, holding to the ladder with his hands, and that one or both of his feet were on the lower step of the ladder. That the car was moving at the rate of seven or eight miles an hour at the time the defendant's brakeman (who was on the flat car just ahead of the car on which plaintiff was riding) hallooed at the boy in a harsh tone for the purpose of causing him to get off the car, and made a motion, and threw some substance or missile at him. He dodged the substance thrown at him, but his foot slipped, and he fell under the moving train and was injured. The jury may have inferred from the evidence that the purpose of the brakeman in thus hallooing at the plaintiff and throwing at him was to make him get off the train.

As stated, the accident occurred on May 19, 1910. The suit was commenced against the defendant company for damages on account of said injuries by his next friend on May 21, 1910. The petition then filed was subsequently amended—on November 21, 1910. The cause of action as stated in this petition and its amendment was a substantially different narrative of...