Missouri Pacific Railway Company v. Moffatt

• Decision Date: 07 January 1899
• Docket Number: 10946
• Citation: 60 Kan. 113,55 P. 837
• Parties: MISSOURI PACIFIC RAILWAY COMPANY v. CHARLES MOFFATT et al
• Court: Kansas Supreme Court

55 P. 837

60 Kan. 113

MISSOURI PACIFIC RAILWAY COMPANY v. CHARLES MOFFATT et al

No. 10946

Supreme Court of Kansas

January 7, 1899

Decided January, 1899.

Error from Wyandotte district court; HENRY L. ALDEN, judge.

Judgment affirmed.

Waggener Horton & Orr, for plaintiff in error.

Hutchings & Keplinger, Hale & Fife, and James F. Mister, for defendants in error.

OPINION

JOHNSTON, J.:

This is the second time that we have been called upon to review the proceedings in the trial court in this case. (Mo. P Rly. Co. v. Moffatt, 56 Kan. 667, 44 P. 607.) On the first review it was held that the averments of the petition were not sufficiently specific to justify the admission of proof of the negligence of the company beyond its failure to give proper signals and due warning of the approach of its trains, and because the trial court admitted testimony and submitted grounds of negligence to the jury not definitely pleaded, the case for that and other reasons was remanded for a new trial. After it was so remanded the plaintiffs below amended their petition by alleging that the railway company was negligent in failing to give signals other than those required by the statute, and in failing to have a gate, a flagman or an electrical alarm at the highway crossing where Andrew C. Moffatt was struck and killed by a locomotive attached to one of its passenger-trains. Several years intervened between the filing of the original petition and the amendment, and it is now claimed that the court. was not warranted in permitting the plaintiff to set up the additional grounds of negligence.

The company assumes that a new cause of action is stated in the amended pleading, and it is contended that as to such new cause of action it must be deemed to have been commenced when the amendment was made, and not when the action itself was commenced, and therefore that it was barred. This contention cannot be successfully maintained. No new cause of action was set forth in the amended petition. The cause of action set forth in each of the pleadings was the negligent killing of Andrew C. Moffatt. In the original petition it is alleged that on the morning in question the company ran its engine and cars at a high rate of speed over a dangerous crossing without giving any warning of the approach of the train, and without using the bell or blowing the whistle, "and without using any other lawful, safe and prudent methods of notifying the public or said Andrew C. Moffatt of the. approach of said engine and cars." It will be observed that the only negligence specifically alleged was the failure to blow the whistle and ring the bell, and for that reason the petition was held to be defective. The pleading did set forth in a somewhat indefinite way that the company failed to take other precautions which it should have taken, and which might have averted the injury. The amended petition set forth definitely that which had been pleaded generally in the original petition, and therefore it cannot be said that a new cause of action or a new ground of recovery was introduced.

The next exception was to the allowance of a new next-friend to appear for the three infant plaintiffs. It appears that after the first trial Eliza M. Moffatt, who acted as the next-friend for three of the minor children, died, and when the last amended petition was filed Charles Moffatt, who in the meantime had reached majority, was named as the next-friend of Wilbur and Florence Moffatt. It is contended that by the death of Eliza M. Moffatt the action become dormant as to the infant plaintiffs, and that another next-friend could only be substituted by proceedings in revivor, and that as there had been no revivor the action was abated. While the action of an infant under the statute may be brought by his guardian or next-friend, the infant is the real party to the proceeding. The infants were parties to the proceeding from its inception, and their rights, which were involved in the action, belonged to themselves. The next-friend had no title to or right in the subject-matter of the action, but was merely brought into court to protect the rights of the infant. The court in which the proceeding is pending guards the interest of the minors, and in the exercise of its power may, when it becomes necessary, remove one next-friend and appoint another. It is also true that when the infant arrives at majority during the pendency of the suit, that fact may be entered upon the record, and he may thenceforth proceed in the suit alone. No formal proceedings to revive are necessary, as the next-friend is neither technically nor substantially a party to the action, but only appears as an agency of the court to guard and protect the interests of the minors, who are the real parties to the proceeding. The statute with reference to the revivor of proceedings has no application to cases where there is a change of next-friend, and hence there was no abatement of the action.

We are unable to agree with the claim that the evidence and special findings of the jury show contributory negligence on the part of Moffatt. The negligence of the railway company was sufficiently shown. The injury was carelessly inflicted on a foggy morning and at a dangerous crossing, when and where extraordinary precautions should have been taken by the traveler as well as the trainmen. It was shown and found that Moffatt was familiar with the crossing and appreciated the danger of passing over it; that on previous occasions, and when his son accompanied him before attempting to make the crossing he required his son to get out of the buggy and go forward to the track to ascertain if a train was...