Johnson v. Wabash R. Co.

• Decision Date: 02 June 1914
• Docket Number: No. 16705.,16705.
• Citation: 168 S.W. 713,259 Mo. 534
• Parties: JOHNSON v. WABASH R. CO.
• Court: Missouri Supreme Court

168 S.W. 713

259 Mo. 534

JOHNSON v. WABASH R. CO.

No. 16705.

Supreme Court of Missouri, Division No. 1.

June 2, 1914.

Rehearing Denied June 30, 1914.

1. CONSTITUTIONAL LAW (§ 80)—JUDICIAL POWER — APPOINTMENT OF GUARDIAN AD LITEM.

The judicial power vested in the courts by Const. art. 6, § 1, refers to the actual trial and determination of matters of law and equity and not to mere preliminary steps necessary for the institution of a suit in law or equity, and Rev. St. 1909, § 1740, authorizing the appointment of a next friend of an infant plaintiff by the circuit clerk, is not unconstitutional.

2. RAILROADS (§ 317)—REGULATION—MUNICIPAL ORDINANCES—CONSTRUCTION.

The ordinance of a city, making it unlawful to run a train in excess of eight miles per hour in the city on unfenced tracks, requires a railroad company to run its trains within the specified limits at a speed not in excess of eight miles per hour, and it cannot run at a higher speed up to an unfenced crossing and then begin to reduce the speed to bring it within the ordinance rate.

3. RAILROADS (§ 350) — INJURIES AT CROSSINGS —CONTRIBUTORY NEGLIGENCE.

A pedestrian was struck by a train at a crossing and killed. The engine was equipped with an oil headlight which was difficult to see on cloudy nights. Persons following decedent did not see the headlight or see or hear the train until it passed them, when they saw the lights in the caboose. Held, that decedent was not, as a matter of law, guilty of contributory negligence, in view of the presumption that she exercised due care.

4. EVIDENCE (§ 147)—NEGATIVE EVIDENCE— COMPETENCY.

A witness in a position to hear signals of a train if given and watching the train and seeing it pass, may testify that no bell was rung or whistle sounded by the train.

5. RAILROADS (§ 351)—ACCIDENTS AT CROSSINGS —EVIDENCE—INSTRUCTIONS.

Where, in an action for the death of a pedestrian struck by a train at a crossing, there was evidence that the train did not reduce its speed to the maximum speed fixed by an ordinance, and that, if it had done so, the accident might not have occurred, an instruction that if the train ran at an excessive speed, and as a direct consequence thereof decedent was killed, a recovery was authorized, unless decedent was guilty of contributory negligence, properly submitted to the jury the question whether the violation of the ordinance was the proximate cause of the accident.

6. RAILROADS (§ 350)—ACCIDENTS AT CROSSINGS — PROXIMATE CAUSE — QUESTION FOR JURY.

Whether the excessive speed of a train striking a pedestrian at a crossing was the proximate cause of the injury held for the jury.

7. TRIAL (§ 250)—ISSUES—INSTRUCTIONS.

Refusal of a requested charge submitting a theory of the case not relied on was not prejudicial.

Appeal from Circuit Court, Audrain County; James D. Barnett, Judge.

Action by William Johnson, an infant, by Hall Taylor, his next friend, against the Wabash Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

J. L. Minnis, of St. Louis, and Robertson & Robertson, of Mexico, Mo., for appellant. E. S. Gantt, of Mexico, Mo., for respondents.

GRAVES, J.

Plaintiff, an infant, sues by his next friend for the death of his mother; such death alleged to be due to the negligence of the defendant. The negligence is thus charged in the petition:

"That the city of Mexico, Mo., is and was at all times herein mentioned a municipal corporation of the third class, organized under the laws of the state of Missouri. That, long prior to the happening of the wrong complained of herein, the said city had duly passed, published, and put in force and effect an ordinance, by which ordinance it is made and declared to be unlawful for any railroad company or its agents, servants, or employés to run upon its tracks or switches, within that part of the corporate limits of said city where said railroad track, tracks, or switches is unfenced, any locomotive, car, or train of cars at a rate of speed to exceed eight miles per hour, which ordinance was duly passed and published in book form and promulgated by the city of Mexico, Mo. That said ordinance was in full force and effect at the time of the wrongs herein complained of, and a penalty was imposed for its violation.

"Plaintiff further states that, at and near said crossing, the tracks of the defendant are unfenced, and that said crossing is in the corporate limits of the city of Mexico, Mo., and in the heart of said city, and that said city is a large and populous city, and that, as defendant well knew, the said crossing is always and at all times used by a great number of travelers, both on foot and in vehicles; that it is and was the duty of the defendant to have its locomotives and cars under full control and to move the same very slowly and to keep a lookout for travelers when approaching said crossing, but plaintiff says that the defendant, its agents and servants, in violation of their duty and in violation of the ordinance heretofore pleaded, carelessly and negligently ran a locomotive and train of cars up to and over said crossing at a very high rate of speed, to wit, 25 to 40 miles per hour, and carelessly and negligently failed to run said train at a slow or lawful rate of speed or to have or to keep the same under control, and negligently and carelessly failed to keep a lookout for persons on said crossing.

"Plaintiff further says that the defendant did not, within 80 rods or within any other distance of said crossing, ring the bell or blow the whistle on said engine and train of cars and keep the same ringing and blowing until said engine had passed said crossing, but negligently and carelessly and unlawfully failed and refused to give any signals at all of the approach of said train at said crossing, and negligently ran said train against Emma Taylor. Plaintiff further says that, as a result of the negligence of the defendant as set forth above, the collision aforesaid was caused and produced, and his said mother was struck and killed, by said train, and by her death he was and is damaged in the sum of $10,000, for which sum and costs he prays judgment."

The answer is: (1) A general denial; (2) a specific denial that there was a legal appointment of the next friend, coupled with an averment that section 1740, R. S. 1909, is violative of constitutional restrictions, in so far as it authorizes the appointment of a next friend by the circuit clerk; and (3) a plea of contributory negligence upon the part of the deceased. No reply is found in the abstract of record, but the case proceeded below as if one had been filed. From a verdict of $3,000 for the plaintiff and the judgment entered thereon, the defendant has appealed. Further details will be stated in connection with the points urged.

I. We are met with a preliminary question in this case. Such question is thus stated in the brief:

"Section 1740, R. S. 1909, is unconstitutional because in conflict with section 1, art. 4, Mo. Const., and the appointment of Hall Taylor as next friend by the clerk in vacation was void. Therefore the action cannot be maintained on account of no legal capacity to sue."

In the instant case the appointment was made by the clerk of the court. The constitutional provision alleged to be violated by this section of the statute reads:

"The judicial power of the state, as to matters of law and equity, except as in this Constitution otherwise provided, shall be vested in a Supreme Court, the St. Louis Court of Appeals, circuit courts, criminal courts, probate courts, county courts, and municipal corporation courts."

This statute has been upon the books for some years, but up to this time does not seem to have been questioned. In our judgment the newness of the idea is the only thing there is in the point made. The appointment of a next friend for an infant is only a preliminary matter in the course of a judicial proceeding, but not necessarily judicial in character. This idea is fully recognized by Valliant, J., in State ex rel. v. Woodson, 161 Mo. loc. cit. 455, 61 S. W. 255, whereat he said:

"What is here said is in reference to judicial power in its strict sense. There are quasi judicial powers conferred upon quasi judicial bodies, and powers to do certain acts in vacation, judicial in character, but subsidiary to a suit pending or about to be instituted in court, are conferred on judges of court; but the power to try issues in a suit at law or in equity, and pronounced judgment or decree upon the facts found or confessed, can be conferred, under our Constitution, only on a fully organized court."

In other words, the judicial power referred to in the constitutional provision, supra, has reference to the actual and real trial and determination of "matters of law and equity" and not to mere preliminary steps necessary to be taken for the institution of the suit in law or equity. In our judgment the statute does not violate the Constitution, and this point is ruled against the defendant.

II. It will be observed that the petition counts upon at least two negligent acts: (1) Running the...