State v. Cox, No. 25313.

CourtMissouri Supreme Court
Writing for the CourtRagland
Citation267 S.W. 382
PartiesSTATE ex rel. MISSOURI PAC. R. CO. v. COX et al., Judges.
Decision Date18 December 1924
Docket NumberNo. 25313.
267 S.W. 382
STATE ex rel. MISSOURI PAC. R. CO.
v.
COX et al., Judges.
No. 25313.
Supreme Court of Missouri, in Banc.
December 18, 1924.

[267 S.W. 383]

Certiorari by the State, at the relation of the Missouri Pacific Railroad Company, against Argus Cox and others, Judges of the Springfield Court of Appeals, to quash judgment and opinion of that court in case of Elizabeth Taylor against relator. " Writ quashed.

James F. Green, of St. Louis, and W. C. Russell, of Charleston, for relator.

Gresham & Montgomery, of Sikeston, and J. L. Fort, of Dexter, for respondents.

RAGLAND, J.


Certiorari. The action giving rise to this proceeding was one brought by Elizabeth Taylor, a minor, as plaintiff, against relator, as defendant, and wherein she sought to recover for personal injuries resulting from a collision, at a public crossing, between an automobile driven by her mother in which the said Elizabeth was riding and one of relator's trains. Negligence was the ground upon which recovery was sought. The negligence alleged consisted of a failure to ring the bell or sound the whistle and the running of the train at an excessive rate of speed, in view of the dangerous character of the crossing, which was fully set forth. Negligence under the humanitarian rule was also charged. Upon a trial of the cause a verdict was returned for the defendant. Subsequently a new trial was awarded plaintiff by the trial court on the ground that it had committed error in giving certain instructions designated as C and D, at the instance of defendant. Thereupon an appeal was prosecuted by the defendant to the Springfield Court of Appeals, which resulted in an affirmance of the order granting a new trial. Relator now seeks to quash the judgment and opinion of the Court of Appeals on the ground that its rulings therein in are in conflict with controlling decisions of this court. Other facts pertinent to the questions involved, as disclosed by the opinion, will be stated in connection with their consideration.

I. The ruling with respect to instruction C and the record facts stated in connection therewith, as found in the opinion, are as follows:

"Instruction C told the jury that if they should believe that Elizabeth Taylor, the plaintiff, was of such age as to be incapable of exercising ordinary care and that she was in the care, custody, and control of her mother, Pearl Taylor, and that her mother was operating and in control of the automobile in which plaintiff was riding at the time of the injury, and her mother was guilty of contributory negligence, then the finding must be for the defendant. The evidence disclosed that Pearl Taylor, the mother of plaintiff, was driving the automobile, and this plaintiff, her infant daughter, was riding

267 S.W. 384

in the rear seat thereof. This automobile was struck by a train of defendant at a crossing, and the effect of this instruction C was to hold the plaintiff responsible for the negligence of her mother.

"Without reviewing the cases at length, we think that an examination of the cases decided since the Stillson Case (Stillson v. Railroad, 67 Mo. 671) establish the rule to be that the negligence of the parent cannot be imputed to the minor child."

The holding of the Court of Appeals, that the instruction was erroneous because it imputed to plaintiff the negligence of her mother, was in complete accord with the recent rulings of this court, as appears from the following cases which it cited: Winters v. K. C. Cable Ry. Co., 99 Mo. 509, 12 S. W. 652, 6 L. R. A. 536, 17 Am. St. Rep. 591; Neff v. Cameron, 213 Mo. 350, 111 S. W. 1139, 18 L. R. A. (N. S.) 320, 127 Am. St. Rep. 606; Berry v. Railroad, 214 Mo. 593, 114 S. W. 27.

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5 practice notes
  • Boyd v. Brewing Association, No. 26703.
    • United States
    • United States State Supreme Court of Missouri
    • February 18, 1928
    ...A suit by a minor may be commenced and prosecuted by his natural guardian where he has no legal guardian. [State ex rel. v. Cox (Mo.), 267 S.W. 382 (6).] For reasons hereinafter stated, it is not necessary to go into the merits of the court's order overruling the motion to strike the amende......
  • Concerned Parents v. Caruthersville School Dist. 18, No. 59626
    • United States
    • Missouri Supreme Court
    • April 11, 1977
    ...we can expect that they will protect the interests of their minor children. 3 See State ex rel. Missouri Pac. R. R. v. Cox, 306 Mo. 27, 267 S.W. 382 (banc 1924); Jones v. Steele, 36 Mo. 324 (1865); Baker v. Mardis, 221 Mo.App. 1185, 1 S.W.2d 223 (1928). In any event, the adult plaintiffs ar......
  • Bergstreser v. Mitchell, No. 76-1102C(A).
    • United States
    • U.S. District Court — Eastern District of Missouri
    • August 22, 1977
    ...guardian of the child without the formality of having the parent appointed as next friend. Missouri Pacific R. Co. v. Cox, 306 Mo. 27, 267 S.W. 382, 384 (1924); Taylor v. Missouri Pac. R. Co., 211 Mo.App. 13, 257 S.W. 511, 512 (1924). See also, Bochantin v. Inland Waterways Corp., 9 F.R.D. ......
  • Cox v. Wrinkle, No. 43897
    • United States
    • United States State Supreme Court of Missouri
    • April 12, 1954
    ...relies on Sections 457.020, 457.220, and 457.420 RSMo 1949, V.A.M.S., and cites State ex rel. Mo. Pac. R. Co. v. Cox, 306 Mo. 27, 267 S.W. 382, wherein it was said an action by a minor can be commenced and prosecuted by his natural guardian where he has no legal guardian; Taylor v. Mo. Pac.......
  • Request a trial to view additional results
5 cases
  • Boyd v. Brewing Association, No. 26703.
    • United States
    • United States State Supreme Court of Missouri
    • February 18, 1928
    ...A suit by a minor may be commenced and prosecuted by his natural guardian where he has no legal guardian. [State ex rel. v. Cox (Mo.), 267 S.W. 382 (6).] For reasons hereinafter stated, it is not necessary to go into the merits of the court's order overruling the motion to strike the amende......
  • Concerned Parents v. Caruthersville School Dist. 18, No. 59626
    • United States
    • Missouri Supreme Court
    • April 11, 1977
    ...we can expect that they will protect the interests of their minor children. 3 See State ex rel. Missouri Pac. R. R. v. Cox, 306 Mo. 27, 267 S.W. 382 (banc 1924); Jones v. Steele, 36 Mo. 324 (1865); Baker v. Mardis, 221 Mo.App. 1185, 1 S.W.2d 223 (1928). In any event, the adult plaintiffs ar......
  • Bergstreser v. Mitchell, No. 76-1102C(A).
    • United States
    • U.S. District Court — Eastern District of Missouri
    • August 22, 1977
    ...guardian of the child without the formality of having the parent appointed as next friend. Missouri Pacific R. Co. v. Cox, 306 Mo. 27, 267 S.W. 382, 384 (1924); Taylor v. Missouri Pac. R. Co., 211 Mo.App. 13, 257 S.W. 511, 512 (1924). See also, Bochantin v. Inland Waterways Corp., 9 F.R.D. ......
  • Cox v. Wrinkle, No. 43897
    • United States
    • United States State Supreme Court of Missouri
    • April 12, 1954
    ...relies on Sections 457.020, 457.220, and 457.420 RSMo 1949, V.A.M.S., and cites State ex rel. Mo. Pac. R. Co. v. Cox, 306 Mo. 27, 267 S.W. 382, wherein it was said an action by a minor can be commenced and prosecuted by his natural guardian where he has no legal guardian; Taylor v. Mo. Pac.......
  • Request a trial to view additional results

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