Raming v. Metropolitan Street Railway Company

• Decision Date: 30 June 1900
• Parties: RAMING, by Next Friend, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

57 S.W. 268

157 Mo. 495

RAMING, by Next Friend, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant

Supreme Court of Missouri, Second Division

June 30, 1900

Appeal from Johnson Circuit Court. -- Hon. W. W. Wood, Judge.

Reversed and remanded.

OPINION

IN BANC.

SHERWOOD J.

1. The foregoing opinion delivered in Division No. 2 of this court, 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 of 15 years old will be presumed of sufficient intelligence to make an application for a change of venue. [Albert v. State to use, 66 Md. 325, 7 A. 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 non-existent, because the minor was sufficiently intelligent to make his own application; and in any event the guardian ad litem should make the application for the infant, and not for himself, and 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 grip-iron 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 8 months living within a half block of defendant's doubletrack Twelfth street line. His route for selling papers was from Holmes street to Main upon Twelfth, a distance of about 8 blocks. He was fully aware of the danger from the cars and of the danger of attempting to step off from the foot-board 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 foot-board of the grip-car soliciting purchasers and then go back along the foot-board and into the coach and "hop" off again. May 18th, 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 fare if he had been asked, he didn't intend or expect so to do, as he got on simply to sell papers.

Mrs. Anna Raming, mother of the injured boy, testified that Martin was nearly nine years old when the accident occurred; that he was an exceedingly bright boy for his age; that he had gone to school three years and was in second reader; that he had lived in various places in the business part of town all his life and ran on the streets a great deal.

Mrs. Tinsley's deposition was taken at a time when plaintiff claimed that he was actually shoved from the car. Her story is practically this. She was riding on the south side of the car and saw plaintiff on the north side thereof, but saw no demonstrations by the gripman; she stepped off the train while in full motion, and was at once accosted by a friend with "Where are you going, Mother Tinsley?" As she turned around she saw plaintiff under the car. After he was carried to the curbstone, she asked him how it happened, and he said the gripman shoved him off. This statement he repeated at three different times and places afterwards. In view of the plaintiff's knowledge at the time that he was hurt as asserted by defendant's witnesses and that he was in the wrong, it is declared that this testimony was but a narrative, especially as it is contradicted, the statements of plaintiff as a witness.

Dr. K. P. Jones and Dr. S. G. Gant testified to having amputated plaintiff's leg above the knee and described no other injury.

At the close of plaintiff's case a demurrer was interposed to the evidence upon each count of the petition, but the same was overruled and such action is the subject of discussion, and at the close of all the testimony the demurrer was again interposed in the form of a direction for a verdict on the first count, which was denied.

Plaintiff's deposition taken in October, 1891, was read, from which it appeared plaintiff testified that the gripman actually shoved him off, that the conductor was not on the grip-car while he was there, and that when he fell he rolled out from the grip-car and back under the hind wheels of the coach.

J. C. Bronaugh testified: that he was on the car when the Raming boy was hurt and was seated on the north side of the rear car next to the front, with nothing but the window between him and the grip-car; he saw the boy on the foot-board of the grip-car, on the north side of the car; his attention was attracted because he wanted to buy one of the papers which the boy was selling; the boy was on the front end and was coming back toward the rear car and was near the end of the grip car, and passed out of sight, so that he didn't see him actually fall; the boy was on the rear end of grip car, eight or ten feet from the gripman; the gripman was at his post and in plain sight of witness and made no motions of any kind.

Mrs. John Keneaster testified: she was on the rear car at the time of the accident and happened to look toward the grip-car and saw the child's head, and that he then disappeared. "It seemed as though he was standing on the back of the grip-car," and "right at the back part I saw his head and then he disappeared;" the gripman was standing right at his post of duty looking right straight ahead and made no motion at the boy that she could see; she was looking at the boy and up by the gripman and saw the boy; there was nothing to obstruct her view and the gripman was at his post of duty.

Miss Jose Ahearne testified: she was on the train at the time of the accident, sitting on the left side of the coach about midway between the window and stove, about three or four feet from front part of coach, where she had a plain view through the open door; the boy was standing on the foot-board at the rear of the grip-car just about to step over to the coach; that he held on to the upright and tried to step over to the coach but missed his footing and fell; she saw no demonstrations toward the boy by the gripman. (It may be here observed that plaintiff admitted that other boys passed in this way from grip to coach, but said he would not have done so because of the known danger.)

Miss Maggie Deyo testified: she was on the car when the Raming boy was hurt, sitting in the coach on the north side about the middle of the car; Mr. Bronaugh was on the car; she saw the boy stepping from the grip-car to the coach and then saw him fall; he was on the rear part of the grip-car on the running-board; she didn't see anyone making a motion toward the boy; he made that step and then disappeared; she saw the boy make the step and fall.

Miss Laura Frazier testified: in May, 1891, when Raming boy was...