Raming v. Metropolitan St. Ry. Co.

Decision Date04 June 1900
Citation157 Mo. 477,57 S.W. 268
CourtMissouri Supreme Court
PartiesRAMING v. METROPOLITAN ST. RY. CO.<SMALL><SUP>1</SUP></SMALL>

4. A petition against a street-railway company for injuries, which alleged the gripman's willful pushing of plaintiff from a moving car as constituting negligence, was bad for duplicity, since the same act could not be both negligent and willful, and, the allegation being so contradictory that the testimony in support of it was necessarily equally contradictory, it was error to overrule a demurrer to such evidence. Valliant and Brace, JJ., dissenting.

5. In an action against a street-railway company for injuries, it is error to instruct that, if plaintiff was riding on the footboard of a grip car while it was running at its usual speed, he was guilty of contributory negligence unless he was a passenger, since his status as a passenger could not affect the question of his negligence.

6. Where plaintiff, a newsboy, sued a street-railway company for injuries caused by a gripman's endeavoring to push him from the car on which he had jumped to sell papers, whereupon he dodged, and in doing so fell from the car and was injured, it was incumbent on plaintiff to allege and prove that the gripman's acts were within the scope of his duties, plaintiff not being a passenger, and, in the absence of such allegation and proof, plaintiff could not recover.

7. Where an action against a street-railway company for injuries is tried and submitted in the lower court on the theory that plaintiff was a passenger, it is too late, on appeal, to attempt to justify plaintiff's recovery on the theory that he was not a passenger.

8. Where plaintiff sues in the only court available to him, and on the third day of the term at which summons is returnable defendant moves to require plaintiff to give security for costs, and on plaintiff's being permitted to sue as a poor person moves for a stay of proceedings until the costs in a previous suit for the same cause are paid, and plaintiff's application for a change of venue is made pending the determination of the latter motion, such facts show reasonable diligence in plaintiff in making his application for the change, the first motion having the effect of arresting the action, and it is immaterial that plaintiff knew of the facts relied on for the change before he instituted his suit.

9. Under Rev. St. 1889, § 2261, requiring an application for a change of venue to be made by the party in his own person, and not by an agent or attorney, such application may be made by the next friend of the infant plaintiff, since the next friend derives his authority, not from the infant, but from the court appointing him. Sherwood and Marshall, JJ., dissenting.

10. An application for a change of venue made by the next friend of an infant plaintiff, on the ground that defendant has an undue influence over the inhabitants of the county in which suit is brought, in which the next friend represents that he, instead of the infant, cannot have a fair trial, is not objectionable as contravening Rev. St. 1889, § 2261, requiring the application to be made by the party; it being apparent from the application that it is the infant who cannot have a fair trial.

In banc.

Action for injuries by Martin Henry Raming, suing by his next friend, H. H. Raming, against the Metropolitan Street-Railway Company. From a judgment in favor of plaintiff, defendant appealed. At a hearing before division No. 2 of the supreme court the judgment was reversed. In banc. Judgment reversed.

SHERWOOD, J.

1. The foregoing opinion, delivered in division No. 2 of this court (50 S. W. 791), was subsequently transferred to court in banc, and argued there. Since then some additional thoughts have occurred to me respecting the application for a change of venue. Counsel for plaintiff assert that the guardian ad litem should have been permitted to make it for the minor on the ground of necessity. But conceding, for argument's sake, that such necessity exists as to a minor of tender years, and therefore renders competent the guardian ad litem when making such application, and authorizes the court to receive it, still, when the supposed necessity for the guardian ad litem to make the application ceases, certainly his power to make it should cease with the necessity which gives it origin. In this case the boy at the time in question was something over 12 years of age, and, as his testimony shows, a bright, smart, intelligent boy. And it has been ruled that a boy 15 years old will be presumed of sufficient intelligence to make an application for a change of venue. Albert v. State, 66 Md. 325, 7 Atl. 697. In another case it was ruled that a minor of 12 years of age possessed sufficient intelligence to make such an application. So that, look at this point as you will, if you turn to the statute you find no authority for the guardian ad litem's application there, and if you turn to necessity you will find that nonexistent, because the minor was sufficiently intelligent to make his own application; and, in any event, if the guardian ad litem should make the application for the infant, and not for himself, he would have to allege the existence of prejudice against the infant and not against himself. Some little attention, it seems to me, should be paid to the statute, even if you hold the guardian ad litem competent.

2. Quitting now the preliminary question just discussed, I proceed to the merits of this cause. It was admitted by the parties that the defendant's cars were operated by an endless cable, the cars being operated by attaching them thereto by means of a gripiron operated by the gripman from a point a little in front of the center of the car. There was no other testimony as to the duties of this gripman, nor any pretense elsewhere in the testimony that he had charge of the train, or anything to do with it, further than the mere operation thereof, nor any duty to perform as to passengers, licensees, or trespassers.

The injured boy, Martin Herman Raming, about 13 years old at the time of the trial, and 9 years of age at the time of the accident, testified that on May 18, 1891, he was engaged in selling newspapers, and had been so engaged for eight months, living within a half block of defendant's double-track Twelfth street line. His route for selling papers was from Holmes street to Main, upon Twelfth, a distance of about eight blocks. He was fully aware of the danger from the cars, and of the danger of attempting to step off from the footboard of the grip car to the step of the coach, as well as of riding on the foot board, and getting on or off the cars, while in motion; yet he would "hop cars" — that is to say, jump on and off of the same — while in full motion. In selling his papers he would "hop" a car, go through each car of the train to see if he could sell a paper, then "hop" off again, attempt to sell to customers along the line, "hop" the next car that came along, and ride down to Main street, where he would again try to ply his vocation. When he "hopped" a car he would walk along the footboard of the grip car, soliciting purchasers, and then go back along the footboard, and into the coach, and "hop" off again. May 18, 1891, he was selling the Kansas City Star at two cents a copy, of which his profit was one cent for each paper sold. His entire stock of newspapers at that time consisted of five papers, which is a very significant fact, because of the declaration that he would have paid fare "if the conductor had asked for the same." While the car in question was going by at its usual speed, he jumped on the rear end of the grip car. This was two blocks from the place of injury. He passed along the foot board to the front end of the train, and then passed back again on his way to the coach, and says that just as he was going back, before he had time to sell a paper, the gripman shoved at him with a broom, and then put that down, and went at him with his hand, but could not reach him, and did not touch him at all, but that plaintiff dodged without being touched, and fell from the car, getting under the wheels of the coach so that they passed over him, crushing his leg below the knee, requiring amputation. The gripman never said anything to him. He had suffered no pain for the year previous, and had no injury other than the loss of his leg, getting out in five weeks. While he says he would have paid his...

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