Spillane v. Missouri Pac. Ry. Co.

• Decision Date: 10 October 1892
• Citation: 111 Mo. 555,20 S.W. 293
• Parties: SPILLANE v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

20 S.W. 293

111 Mo. 555

SPILLANE v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri, Division No. 2.

October 10, 1892.

RAILROAD COMPANIES — ACCIDENT AT CROSSING — INFANT PLAINTIFF — QUALIFICATION OF GUARDIAN — DEMURRER TO COMPLAINT — EFFECT OF ANSWERING OVER — INSTRUCTIONS.

1. Rev. St. § 5279, provides that the father shall be the natural guardian of his children, and have the care and custody of their estates, "and, when such estate is not derived from the parent acting as guardian, such parent shall give security and account as other guardians." Held, that where a father sues as guardian of his infant child, to recover for personal injuries to the latter, he should first qualify by giving security.

2. Under Rev. St. § 2043, which provides that a defendant may demur to a complaint when it appears on its face that plaintiff is without legal capacity to sue, where a complaint filed by a guardian for personal injuries to an infant plaintiff fails to show that the guardian has qualified as such, the question of such qualification should be raised by demurrer, rather than by answer.

3. Where a demurrer to the capacity of plaintiff to sue is overruled, and defendant answers, the question raised by the demurrer is waived.

4. It is a question for a jury to determine, whether a boy who was injured at a railroad crossing exercised that degree of care which could reasonably be expected of him, considering his age, capacity, and experience.

5. In an action for personal injuries received by a boy eight years of age at a railroad crossing, the error of giving an unqualified instruction that plaintiff was not guilty of contributory negligence was not cured by also erroneously instructing that, unless plaintiff looked and listened for a train before going on the track, he was guilty of contributory negligence.

6. It is reversible error to give contradictory or conflicting instructions.

Appeal from circuit court, Jackson county; J. H. SLOVER, Judge.

Action for personal injuries by Dennis Spillane, an infant, by his guardian, against the Missouri Pacific Railway Company. Plaintiff had judgment, and defendant appeals. Reversed.

Elijah Robinson, for appellant. Fyke & Hamilton, for respondent.

MACFARLANE, J.

Plaintiff, an infant eight years of age, prosecutes this suit by his father and natural guardian, to recover damages for personal injuries sustained by having been struck by a train on defendant's road in Kansas City, by reason of the alleged negligence of defendant's employes in charge thereof. The negligence charged in the petition, and upon which the case was submitted to the jury, was that the train was negligently run at a rate of speed in excess of six miles per hour, in violation of an ordinance of the city. Defendant demurred to the petition upon the ground, among others, that it did not appear that the father of plaintiff had given bond as guardian. The demurrer was overruled, and defendant answered over. The answer was a general denial of negligence, and pleas of contributory negligence of the plaintiff himself, and of his parents. The answer, also, charged that plaintiff had not the capacity to sue, and that his father and natural guardian had not given bond and qualified as guardian. The trial disclosed the following undisputed facts: An ordinance of the city of Kansas City prohibited the movement of trains within the city limits at a greater rate of speed than six miles per hour. Defendant operated a railroad, having four tracks, along Front street, east and west, where the same is crossed by Grand avenue. Plaintiff lived, with his parents, on Grand avenue, about one block south of the railroad. He was a boy of ordinary intelligence, was attending school, had been engaged in selling papers, and was familiar with the railroad tracks at Grand avenue. Trains passed over the tracks across Grand avenue frequently during the day. Front street, along which the railroad tracks were laid, was covered with plank, and was used by wagons and pedestrians as a highway. The tracks west of Grand avenue were straight, and the view unobstructed for 600 feet. On the occasion of the accident, plaintiff's mother had sent him to an ice house, situate north of the railroad and east of Grand avenue, to get some ice. He took a rope with him, went to the ice house, procured a large lump of ice, tied the rope to it, and proceeded in the way usually traveled, diagonally across Front street and the railroad tracks, southwesterly towards Grand avenue, dragging the ice after him. He was struck by a freight train running from the west, on the south track, and was injured. The evidence of plaintiff tended to prove that the train was running 20 miles per hour, and that a wagon, crossing the track, obstructed the view, so that plaintiff could not see the approaching train. The evidence of defendant tended to prove that the train was not running to exceed five miles per hour; that plaintiff was not on the track as the train approached; and that the boy was on one side the track, and the ice the other, and the rope was caught by the train, and by that means plaintiff was pulled under it. Plaintiff admitted, on cross-examination, that he did not look or listen for a train before going on the track. He claimed that he did not see the train before it struck him, and did not know by what part he was struck. The verdict and judgment were for plaintiff, and defendant appealed.

1. The first assignment of error, upon which plaintiff relies for a reversal, is that the suit could not be maintained in the name of the father of plaintiff, as his natural guardian, unless he had first qualified as such by giving bond. The statute provides that "suits by infants may be commenced and prosecuted" by the guardian or curator, (section 1997,) and that the father shall be the natural guardian and curator of his children, and have the care and custody of their estates; "and, when such estate is not derived from the parent acting as guardian and curator, such parent shall give security and account as other guardians and curators," (section 5279.) The petition states that plaintiff is an infant of tender years, and that Timothy Spillane, by whom he sues, is his father and natural guardian. If giving a bond was necessary to invest the father with authority to maintain the suit for his minor child, then the fact that the necessary bond had been given became material, and should have been stated in the petition. Higgins v. Railroad Co., 36 Mo. 431. No such averment was made, and for that reason the incapacity of plaintiff to sue appeared upon the face of the petition, and the objection was properly made by demurrer, and not by answer. Rev. St. §§ 2043, 2047. If defendant desired to take advantage of the...