Redmond v. Quincy, O. & K. C. R. Co.

• Decision Date: 23 December 1909
• Citation: 225 Mo. 721,126 S.W. 159
• Parties: REDMOND v. QUINCY, O. & K. C. R. CO.
• Court: Missouri Supreme Court

126 S.W. 159

225 Mo. 721

REDMOND v. QUINCY, O. & K. C. R. CO.

Supreme Court of Missouri, Division No. 1.

December 23, 1909.

Rehearing Denied March 1, 1910.

1. ABATEMENT AND REVIVAL (§ 33) — ACTIONS — INTERPOSITION OF GUARDIAN — EFFECT.

Where a guardian for plaintiff, who became insane pending suit, was allowed to interpose in the case in his behalf, it did not displace his ward as plaintiff, and there was no abatement and revivor; the ward, and not the guardian who represents him, being the plaintiff.

2. INSANE PERSONS (§ 36) — TITLE TO PROPERTY.

An insane person retains title to his property, and it does not vest in his guardian or curator.

3. INSANE PERSONS (§§ 94, 100) — ACTIONS — JUDGMENT.

If an insane person is sued, the court will appoint a guardian ad litem or other suitable representative, but a judgment against defendant would not be against such guardian, but against the insane person.

4. CONSTITUTIONAL LAW (§ 56) — LEGISLATIVE POWERS — ENCROACHMNET ON JUDICIARY.

Jurisdiction given to the courts by the Constitution cannot be taken away or curtailed by the General Assembly, but it may prescribe the mode of procedure by which it is to be exercised.

5. INSANE PERSONS (§ 33) — APPOINTMENT OF GUARDIAN — JURISDICTION.

Jurisdiction of the probate court to appoint a guardian for an adult person after ascertaining his insanity necessarily carries jurisdiction to inquire as to his mental condition.

6. INSANE PERSONS (§ 30) — GUARDIANS AND CURATORS — GROUNDS OF APPOINTMENT.

An insane person needs a guardian of his person even though he have no property, but a curator only is needed where there is property to be protected.

7. CONSTITUTIONAL LAW (§ 56) — LEGISLATIVE POWERS — ENCROACHMENT ON JUDICIARY.

Const. art. 6, § 34 (Ann. St. 1906, p. 238), having conferred on the probate court jurisdiction over all matters pertaining to the appointment of guardians and curators of persons of unsound mind without limiting its jurisdiction to cases in which such a person owns property, the proviso added by Acts 1903, p. 200, to Rev. St. 1899, § 3650 (Ann. St. 1906, p. 2060) prescribing the procedure, providing the court shall not have jurisdiction to inquire into the insanity of one not owning property, is unconstitutional.

8. DEPOSITIONS (§ 83) — SUPPRESSION — MENTAL INCAPACITY OF DEPONENT.

Where a deponent's mental capacity to give testimony is an open question on the evidence, it bears on the weight to be given to his testimony, but does not require the suppression of his deposition.

9. DEPOSITIONS (§ 83) — SUPPRESSION — MENTAL INCAPACITY OF DEPONENT — EVIDENCE — SUFFICIENCY.

Evidence as to plaintiff's mental incapacity to testify held insufficient to show that it was so obvious as to justify the court in suppressing his deposition on that ground.

10. DEPOSITIONS (§ 83) — SUPPRESSION — DISQUALIFICATION OF NOTARY.

That the notary who took a plaintiff's deposition was a partner with one of plaintiff's attorneys in the business of insurance agents is good ground for its suppression, if the objection is made in time.

11. DEPOSITIONS (§ 60) — OFFICER TAKING — JUDICIAL CAPACITY AND DISCRETION.

A notary taking a deposition to be used as evidence in a pending case acts in a judiciary capacity, and should be entirely disinterested, and, not only in taking down the questions and answers, but in the whole course of the proceedings, he should exercise a judicial discretion.

12. DEPOSITIONS (§ 103) — IMPEACHMENT — UNFAIRNESS AND PARTIALITY OF NOTARY.

If a notary fails to take a deposition as fairly and impartially as a judge on the bench, it may be impeached.

13. DEPOSITIONS (§ 83) — SUPPRESSION — DISQUALIFICATION OF NOTARY.

Where a notary taking a deposition appears to have acted fairly, and correctly reported all the proceedings before him, and one of the attorneys for defendant who was present knew he was a business partner of an attorney for plaintiff, but made no objection on that ground, the court properly refused to suppress the deposition on account of the notary's partnership relation.

14. DEPOSITIONS (§ 107) — INTRODUCTION IN EVIDENCE — WAIVER OF OBJECTIONS.

An objection to the form of a question to a deponent as being leading is waived unless made before the officer taking the deposition.

15. MASTER AND SERVANT (§ 235) — INJURY TO RAILROAD EMPLOYÉ — CONTRIBUTORY NEGLIGENCE.

A railroad employé, injured while at work in switching cars under the immediate supervision of a yard master, had a right to trust that the latter had done his duty by placing cars on a side track far enough from the main track to allow him to safely pass standing on a ladder on the side next to them; and, though he saw the cars standing there, he was not obliged to measure the distance.

16. MASTER AND SERVANT (§§ 286, 288, 289) — ACTION FOR INJURIES — QUESTIONS FOR JURY.

In an action against a railroad by an injured employé, who struck against a car on a side track as he stood on a ladder of a car being

switched, evidence held to present questions for the jury as to negligence, contributory negligence, and assumption of risk.

17. MASTER AND SERVANT (§ 97) — SAFE PLACE TO WORK — TRANSITORY DANGER.

Where the master furnishes his servants a reasonably safe place to work, he is not liable for a transitory danger arising out of a single occurrence in which he is not at fault, and of which he has no notice or opportunity to correct.

18. APPEAL AND ERROR (§ 1066) — HARMLESS ERROR — INSTRUCTIONS.

Where, in an action against a railroad by an injured employé, who struck against a car on a side track as he stood on the ladder of a car being switched, it appeared the yard master, under whose immediate supervision plaintiff was at work, was present and saw the situation, which was easy to correct, if dangerous, an instruction based on the supposition that defendant had negligently permitted or suffered the car to remain there for a long period of time, where the evidence showed it was for only a few hours, and the car was to be soon moved, was harmless error, as there was no question as to defendant's knowledge of the danger, and the time the car remained on the side track did not render it more dangerous or more liable to produce the accident.

19. MASTER AND SERVANT (§ 125) — SAFE PLACE TO WORK — DANGEROUS CONDITION — DURATION THEREOF — EFFECT.

The significance of the fact that a dangerous condition is suffered to remain a long time is that it indicates the master had notice of it, but when there is no question about his knowledge, the duration of the condition is immaterial.

20. MASTER AND SERVANT (§ 296) — ACTION FOR INJURIES — INSTRUCTIONS — CONTRIBUTORY NEGLIGENCE.

In an action against a railroad by an injured employé, who struck against a car on a side track as he stood on the ladder of a car being switched, the court charged that, if the jury found that plaintiff was exercising ordinary care in riding on the ladder in the way and at the time aforesaid, and was not guilty of any contributory negligence on his part, contributing directly to produce such injury, he might recover. Another instruction defined negligence and ordinary care, and stated that, if plaintiff himself was negligent, and such negligence directly contributed to his injury, he could not recover, that it was his duty to exercise for his own protection the care usually exercised by careful persons under like circumstances, and if he failed to do so, and such failure was the cause of or contributed to the injury, the jury should find for defendant. Held, that the defense of contributory negligence was fairly given to the jury.

21. APPEAL AND ERROR (§ 1078) — REVIEW — POINT NOT IN BRIEF.

A point made on a motion for a new trial will not be considered on appeal, where appellant makes no such point in his brief.

Appeal from Circuit Court, Caldwell County; J. W. Alexander and Frank H. Trimble, Judges.

Action by Fred Redmond, by his guardian, John Redmond, against the Quincy, Omaha & Kansas City Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

O. J. Chapman, H. T. Herndon, and J. G. Trimble, for appellant. Pross T. Cross, John A. Cross, R. H. Musser, John A. Clark, and John C. Carr, for respondent.

VALLIANT, J.

Plaintiff in his petition avers that he was a switchman and brakeman in the employ of the defendant railroad company; that while he was engaged in the performance of his duty as such, in defendant's switchyard at Milan, on January 11, 1903, standing on the ladder on the side of a car that was being switched, he was struck against another car that was standing on a side track, knocked off, thrown to the ground, and received severe personal injuries, for which he sues to recover damages. The trial resulted in a judgment in plaintiff's favor for $10,000, from which the defendant appealed.

The petition alleges four grounds of negligence: First, that by negligently placing, and suffering to remain, the car on the side track in such dangerous proximity to the track on which was the car plaintiff was riding as to strike the plaintiff, the track and yards were rendered not a reasonably safe place for plaintiff to work in; second, defendant's servants in charge of the engine drawing the car on the ladder of which plaintiff was standing saw, or by the exercise of reasonable care would have seen, the dangerous proximity of the car on the side track, and knew plaintiff's position on the ladder and the danger that threatened, yet failed to warn him; third, that seeing and knowing the danger to which plaintiff was so exposed, the defendant's servants in charge of the engine ran it at a dangerous and unsafe rate of speed; fourth, that the switchyard was not properly lighted.

The original petition was filed in the name of Fred Redmond, plaintiff. It was filed December 9, 1905, and on December 18, 1905, his deposition was taken in his own behalf at Lathrop, Clinton county. On April 11, 1906, one John Redmond, the father of...