Greer v. St. Louis, Iron Mountain and Southern Railway Company

• Decision Date: 28 July 1913
• Citation: 158 S.W. 740,173 Mo.App. 276
• Parties: A. W. GREER, Administrator of the Estate of BERRYL McGOWAN, Deceased, Respondent, v. ST. LOUIS, IRON MOUNTAIN and SOUTHERN RAILWAY COMPANY, a Corporation, Appellant
• Court: Missouri Court of Appeals

158 S.W. 740

173 Mo.App. 276

A. W. GREER, Administrator of the Estate of BERRYL McGOWAN, Deceased, Respondent, v. ST. LOUIS, IRON MOUNTAIN and SOUTHERN RAILWAY COMPANY, a Corporation, Appellant

Court of Appeals of Missouri, Springfield

July 28, 1913

Appeal from Butler County Circuit Court.--Hon. J. C. Sheppard Judge.

Reversed and remanded.

R. T Railey and N. A. Mozley for appellant.

(1) Sec. 3150, R. S. 1909, upon which respondent's cause of action is predicated, is designed solely for the protection of property from damage by fire and water and has no reference to personal injuries. Sec. 3150, R. S. 1909; Cox v. Railroad, 174 Mo. 588; Scott v Railroad, 38 Mo.App. 527. (2) The injury complained of was not the proximate result of the alleged wrongful act charged against appellant. Logan v. Railroad, 96 Mo.App. 461; Gwyn v. Railroad, 155 Fed. (Tenn.) 88; Cole v. G. S. & L. Society, 124 Fed. (Utah) 113; Webb's Pollock on Torts (Enlarged Am. Ed.), p. 32; Saxton v. Railroad, 98 Mo.App. 494; Wilson v. Railroad, 129 Mo.App. 658; Ray's Negligence of Imposed Duties (Personal), pp. 133-4; Cooley on Torts, 68-71; 1 White on Personal Injuries, secs. 20-39; Railroad v. Long Admr., 117 S.W. 359-361; Atkinson v. Railroad, 90 Mo.App. 489; Railroad v. Calhoun, 213 U.S. 1, 53 L.Ed. 674; Railroad v. Boyles, 33 S.W. 247; Davis v. Railroad, 33 L. R. A. 654; Robb v. Penn. Co., etc., 65 Am. St. Rep. 868, 186 Penn, 456; Railroad v. Trott, 25 S.W. 419-420; Ohl v. Bethlehem, 199 Penn. 588; Railroad v. Kellogg, 94 U.S. 469-474, 24 L.Ed. 256; Railroad v. Woolley, 77 Miss. 927; Hansen v. Gas Light Co., 82 Minn. 84; Railroad v. Charman, 161 Ind. 95; Enocks v. Railroad, 145 Ind. 635; Consolidated E. L. & P. Co. v. Koepp, 64 Kan. 735; Howlerson v. Railroad, 157 Mo. 216; Fuchs v. City of St. Louis, 167 Mo. 645-6; Holman v. Railroad, 62 Mo. 564; Henry v. Railroad, 76 Mo. 294. (3) An instruction cannot assume the existence of controverted facts. Curtis v. Briggs, 25 Mo.App. 179; Dulaney v. Sugar R. Co., 42 Mo.App. 662; Thompson v. Botts, 8 Mo. 710; Choquette v. Barada, 28 Mo. 491; Merritt v. Givens, 34 Mo. 98; Peck v. Ritchey, 66 Mo. 114; Dowling v. Allen, 88 Mo. 293. (4) Respondent's instruction No. 2 is erroneous in that it tells the jury that the failure of appellant to clean off, burn or remove the dead and dry vegetation and undergrowth on its right of way, adjacent to the McGowan premises, constituted negligence on its part upon which can be predicated this action for personal injuries. Such is not the law of this State. Sec. 3150, R. S. 1909; Cox v. Railroad, 174 Mo. 586; Scott v. Railroad, 38 Mo.App. 527. (5) An instruction can properly assume only admitted facts. Curtis v. Briggs, 25 Mo.App. 179; Dulaney v. Sugar R. Co., 42 Mo.App. 662. (6) Even if Alfred W. Greer was duly appointed administrator of the estate of Berryl McGowan, deceased, the first administrator, Charles H. McGowan, appropriated the cause of action by suing thereon at the January term 1912, of the Butler County Circuit Court, there being absolutely no proof that said Charles H. McGowan resigned as such administrator after instituting said action and, hence, no cause of action survived to said Alfred W. Greer, as administrator, or in any other capacity. Paccard v. Railroad, 181 Mo. 421. (7) The question of proximate cause, where the facts of the accident are undisputed, is one for the court to determine. Henry v. Railroad, 76 Mo. 293.

Abington & Phillips for respondent.

(1) Defendant's permitting dead and dry vegetation to remain upon its right of way where it was likely to catch fire and damage adjacent property and menace the well-being of persons lawfully thereon, was negligence at common law. 33 Cyc, 1338, and cases cited. (2) Defendant was required by Sec. 3150, R. S. 1909, to cut down, burn up or otherwise remove the dead and dry vegetation and undergrowth upon its right of way where the same adjoined plaintiff's home, and its failure so to do was negligence per se. 29 Cyc, 436; Owens v. Railroad, 58 Mo. 386; Karle v. Railroad, 55 Mo. 476; Brannock v. Elmore, 114 Mo. 55; Schlerth v. Railroad, 96 Mo. 509; Schoenlou v. Friese, 14 Mo.App. 436. (3) The injury which Berryl McGowan received was the proximate result of defendant's negligence in permitting dead and dry vegetation and undergrowth to accumulate upon its right of way, and in causing the same to be set afire. Berg v. Railroad, 73 N.W. 648; Liming v. Railroad, 81 Iowa 246, 47 N.W. 66; Raynowski v. Railroad, 74 Mich. 20, 41 N.W. 847; Raynowski v. Railroad, 78 Mich. 681; Glanz v. Railroad, 93 N.W. 575; McKenna v. Baessler, 86 Iowa 197, 17 L. R. A. 310; Railroad v. Barnes, 28 N.E. 330. (4) Berryl McGowan was less than three years of age at the time of his injury and could not be guilty of contributory negligence. Fink v. Co., 82 Mo. 276. (5) Plaintiff's instruction No. 1 followed the petition and submitted no questions to the jury except such as were warranted by the evidence. (6) Appellant cannot attack plaintiff's right to maintain this action for the first time in this court. If it desired to question plaintiff's right it should have done so by a proper plea in the lower court. Gross v. Watts, 206 Mo. 392.

STURGIS, J. Farrington, J., concurs. Robertson, P. J., dissents.

OPINION

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 the appointment of plaintiff as administrator of such estate. It is then alleged as a cause of action that the defendant owned and operated a railroad running east from Poplar Bluff, Missouri, to Birds Point in this State; that the residence and yard of said Berryl McGowan, being the residence and yard of his father, is adjacent to and adjoining the defendant's right of way on the south side thereof; that on and prior to the fifth day of January, 1911, when the alleged injuries were inflicted, the defendant had carelessly and negligently failed to cut down or clean off of its right of way adjoining the said residence the dead and dry vegetation and undergrowth thereon; and had failed to comply with section 3150, Revised Statutes 1909, in cleaning off and burning up or removing the dead and dry vegetation from its right of way between the first and fifteenth days of August and the fifth and twenty-fifth days of October of the preceding year; that, as a consequence and while said Berryl McGowan was in his father's yard adjoining the said railroad, the defendant so negligently operated and ran one of its locomotive engines along said railroad that fire was communicated by the locomotive to the dead and dry vegetation on the railroad right of way, and that the fire spread therefrom into the yard of the child's father, and through no fault of his, set fire to and burned the child's clothing, "and that thus and thereby said Berryl was permanently injured, maimed and disfigured, in this, that his body, belly, sides, arms, hands and legs were burned, maimed and permanently injured, crippled and disfigured and that thus and thereby his health was permanently injured and impaired, and that by reason thereof said Berryl suffered until his death great physical pain and mental anguish." To this petition the defendant filed an answer amounting to a general denial. A trial was had at the April term, 1912, resulting in a verdict and judgment in favor of the plaintiff for $ 2500, from which this appeal is prosecuted.

It is well settled that this action cannot be maintained under section 105, Revised Statutes 1909, providing that an action for wrongs done to property rights or interests of another, for which an action might be maintained against the wrongdoer, may be brought after the death of the person injured by his executor or his administrator in the same manner and with like effect as an action founded upon contract. [Gilkeson v. Railroad, 222 Mo. 173, 186,121 S.W. 138; Elliott v. Kansas City, 210 Mo. 576, 580, 109 S.W. 627; Showen v. Railroad, 164 Mo.App. 41, 148 S.W. 135.

The only authority of plaintiff for maintaining this suit as administrator is based on section 5438, Revised Statutes 1909,...