Greer v. St. Louis, I. M. & S. Ry. Co.

Decision Date07 July 1913
Citation158 S.W. 740
CourtMissouri Court of Appeals
PartiesGREER v. ST. LOUIS, I. M. & S. RY. CO.

Rev. St. 1909, § 5438, provides that causes of action upon which suits have been brought by the injured party for personal injuries "other than those resulting in death" shall not abate by reason of his death, but shall survive to his personal representative. The petition, in an action thereunder by the public administrator, averred defendant's negligence in not removing dead and dry vegetation from its right of way, and in so negligently running a locomotive that fire was communicated to such vegetation, and spread into the yard of plaintiff's home, where plaintiff's intestate, a child of two years, through no fault of his own, was burned and permanently injured and disfigured, and his health permanently injured, by reason of which he suffered great physical pain until his death. Held, that the averments of the petition could not be construed as equivalent to an averment that the action was for personal injuries "other than those resulting in death," as required by the statute.

7. PLEADING (§ 406)—RIGHT OF REVIEW—ESTOPPEL AFFECTING RIGHT — PROCEEDING WITH TRIAL.

The rule that defendant, who offers evidence and requests instructions, and tries the case without objection that the plaintiff had no cause of action, cannot afterward raise such objection, is a sort of quasi estoppel, often adopted to secure fairness and justice in the trial of cases, and is applied to answers and subsequent pleadings, if not exclusively, at least much oftener than to the petition.

8. APPEAL AND ERROR (§ 193)PARTY ENTITLED TO REVIEW — ESTOPPEL AFFECTING RIGHT—PROCEEDING TO TRIAL.

The petition, in an administrator's action for personal injuries, which had been begun by the intestate before his death, was fatally defective in that it did not aver that the injury was for personal injuries "other than those resulting in death," as required by the statute (Rev. St. 1909, § 5438), but defendant failed to object to the sufficiency of the petition, and cross-examined plaintiff's witnesses with a view to showing that the intestate's injuries were not as severe, permanent, or painful as plaintiff contended, and introduced evidence to that effect, and requested an instruction that the action was not one to recover for the intestate's death, and that the jury should not consider his death. It also appeared that defendant had not, during the trial, discovered the defect, but was trying to reduce the amount of damages. Held, that as defendant had not purposely misled plaintiff, and had the right to object to the defect at any stage of the action, it was not estopped by the position taken in the trial court.

9. TRIAL (§ 253)—INSTRUCTIONS—IGNORING ISSUES.

In an action by an administrator under Rev. St. 1909, § 5438, giving him a right to maintain an action brought by the injured party for personal injuries "other than those resulting in death," an instruction, purporting to cover the entire case, and authorizing a verdict for plaintiff, was erroneous, where it failed to require the jury to find that the injury sued for did not result in the intestate's death.

10. PLEADING (§ 377)—APPOINTMENT OF ADMINISTRATOR—ADMISSION BY FAILURE TO DENY.

Under a general denial, and in the absence of a special traverse of the allegation that plaintiff was the lawfully appointed administrator, such allegation would be taken as admitted.

11. RAILROADS (§ 456)—FIRES—PERMITTING COMBUSTIBLES ON RIGHT OF WAY.

A railroad which allowed a large amount of dry grass to accumulate and remain on its right of way, so that a passing locomotive set fire to it and spread to the yard where a child was playing, and severely burned it, was guilty of actionable negligence at common law.

12. RAILROADS (§ 456)—NEGLIGENCE IN CARE OF RIGHT OF WAY—LIABILITY FOR PERSONAL INJURIES.

Rev. St. 1909, § 3150, intended to more strictly enforce the common-law duty of railroads by requiring them to cut and remove or destroy all dead grass and vegetation on their rights of way, to prevent the spread of fire and the destruction of property, providing a penalty and making them "liable for all damages done by said neglect of duty," rendered them liable for injuries to persons, as well as to property.

13. NEGLIGENCE (§ 85)—CONTRIBUTORY NEGLIGENCE—CHILDREN.

A child two years of age, not capable of intelligent action, could not be chargeable with contributory negligence.

14. NEGLIGENCE (§ 59)—PROXIMATE CAUSE —CONSEQUENCES THAT SHOULD HAVE BEEN ANTICIPATED.

A party charged with negligence must be in a position to anticipate some bad effect as a result of his act, but it does not follow that the particular act complained of should be contemplated or that the particular injury could be anticipated.

15. RAILROADS (§ 464)—FIRES—NEGLIGENCE —PROXIMATE CAUSE.

Where defendant railroad was guilty of negligence, both at common law and under Rev. St. 1909, § 3150, requiring railroads to cut and remove or destroy dead grass and vegetation from their rights of way, in starting a fire on such right of way from its locomotive which spread to the front yard in a house adjoining the right of way, and severely burned a child two years old playing in the yard, such negligence was the proximate cause of the injury.

Robertson, P.J., dissenting.

Appeal from Circuit Court, Butler County; J. C. Sheppard, Judge.

Action by A. W. Greer, administrator of the estate of Berryl McGowan, deceased, against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

R. T. Railey, of St. Louis, and N. A. Mozley, of Bloomfield, for appellant. Abington & Phillips, of Poplar Bluff, for respondent.

STURGIS, J.

This suit was originally commenced in the circuit court of Butler county on August 16, 1911, by Berryl McGowan, a child about two years old, by his father as next friend, to recover for physical pain and mental anguish suffered by said Berryl, resulting from burns received on account of the alleged negligence of defendant in failing to keep its right of way free from dead grass and weeds and other rubbish, so as to prevent the spread of fire communicated thereto by passing locomotives. The evidence showed that the front yard of this child's home adjoined the defendant's right of way, and that the child was burned on January 3, 1911, while in this front yard, by reason of a fire spreading thereto from the defendant's right of way, where it was started by a locomotive passing on defendant's railroad. Pending this action by the father as next friend, and on October 30, 1911, said Berryl McGowan died. His death having been suggested to the trial court, the cause was continued to the January term, 1912. In the meantime the child's father was appointed administrator of its estate, and the cause was revived by such administrator filing his petition to the January term, 1912, of said court. The present plaintiff, who is the public administrator of Butler county, having succeeded the child's father as administrator of its estate, filed another petition at the same term of court. This petition alleges the bringing of the suit by Berryl McGowan, by his father as next friend, for personal injuries to himself; the death of said Berryl, pending said suit and before it was tried, but without stating whether such death was the result of the injuries sued for or from an independent cause; the appointment of the father as administrator, his declining to act as such, and...

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