Rima v. Iron-Works

• Decision Date: 03 June 1890
• Citation: 120 N.Y. 433,24 N.E. 940
• Parties: RIMA v. ROSSIE IRON-WORKS.
• Court: New York Court of Appeals Court of Appeals

120 N.Y. 433

24 N.E. 940

RIMA

v.ROSSIE IRON-WORKS.

Court of Appeals of New York, Second Division.

June 3, 1890.

Appeal from a judgment of the general term of the supreme court in the fourth judicial department affirming a judgment entered upon a verdict, and also affirming two orders,-one denying a motion for a new trial, and the other appointing a special guardian of the plaintiff.

This was an action to recover damages for personal injuries sustained by the plaintiff through the alleged negligence of the defendant. On the 27th of January, 1886, the plaintiff was in the employ of the defendant, a corporation engaged in operating an iron mine in the county of Jefferson. The ore was mined far under-ground, and was loaded onto cars which were shoved by hand over a level track to the bottom of a somewhat steep ascent, where a wire cable was attached by means of a clevis and draw-bar. Motive power, furnished by a stationary engine, was then applied to the cable, and the car was thus drawn out of the mine. On the day in question, as a loaded car was being drawn up the ascent, the draw-bar broke, and the car descended with great velocity, and ran against an empty car which the plaintiff, by the special direction of the ‘mine boss.’ was engaged in shoving into position to be loaded. The empty car thus set in sudden motion was thrown against the plaintiff, who was severely injured. He had been working but one day in this mine when the accident happened, although he had worked in an adjoining mine belonging to the defendant for twenty days immediately preceding. Evidence was given tending to show that the drawbar was cracked at the point where it broke, and that notice of this fact had been given to the mine boss, who, although not the nominal, was the actual, superintendent of the mine.

Louis Hasbrouck, for appellant.

C. H. Walts, for respondent.

VANN, J., ( after stating the facts as above.)

The trial of this action was commenced on the 23d of September, 1886; and, during its progress, it appeared by the cross-examination of the plaintiff that he was an infant, and that he would not be 21 years of age until the 3d of the following month. The defendant was ignorant of this fact on the 16th of June, 1886, when the action was commenced, and did not hear of it until two days before the commencement of the trial. At the close of the evidence a motion was made for a nonsuit upon the ground, among others, that the plaintiff, although under age, was prosecuting the action without a guardian ad litem, whereupon an application was made to the court for the appointment of a guardian nunc pro tunc. The application was granted, and before the case was submitted to the jury an order was entered in the minutes of the court, which, after reciting the substance of the affidavit upon which it was founded, appointed a guardian ad litem ‘for said infant plaintiff, for the purposes of this action,’ and provided ‘that all pleadings herein be amended accordingly.’ It was further directed that the order ‘be, and hereby is, entered as of a date previous to the service of the summons herein.’ The defendant ant insists that the court had no power to make said order, and that the motion to nonsuit should have been granted. The question is also raised by a direct appeal from the order as made.

The Code of Civil Procedure provides that, where an infant has a right of action, he is entitled to maintain an action thereon; that the same shall not be deferred or delayed on account of his infancy, but that before a summons is issued in his name a competent and responsible person, who shall be responsible for the costs, must be appointed to appear as his guardian for the purpose of the action. Sections 468, 469. The corresponding section of the Code of Procedure provided that, ‘when an infant is a party, he must appear by guardian.’ Section 115. These sections had their origin in the Revised Statutes, which declared that when an infant had a right of action to recover real property, or the possession thereof, or to recover any debt or damages, he should be entitled to maintain a suit thereon, and that the same should not be deferred or delayed on account of such infant not being of full age, but required that a competent and responsible person should be ‘appointed to appear as next friend for such infant’ before any process should be issued in his name. 2 Rev. St. (3d Ed.) p. 542, §§ 1, 2. Thus it appears that for many years a statute mandatory in form has required the appointment of a guardian or next friend before process could be issued in the name of an infant plaintiff. The decisions under these statutes have held, almost without exception, that the omission to appoint a special representative of the infant was an irregularity only, and that it did not affect the jurisdiction of the court. Thus, in Fellows v. Niver, 18 Wend. 563, 564, which arose while the Revised Statutes were in force, the court said: ‘It is a question...