State v. Cox

• Decision Date: 18 December 1924
• Docket Number: No. 25313.,25313.
• Citation: 267 S.W. 382
• Parties: STATE ex rel. MISSOURI PAC. R. CO. v. COX et al., Judges.
• Court: Missouri Supreme Court

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.

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 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.

II. Instruction D declared that if "plaintiff was of such age to have the capacity to exercise ordinary care for her own safety, then it was her duty to look out for the approaching train, and if she could, by the exercise of ordinary care, have discovered the train in time to have notified her mother of its approach, and had the automobile stopped before it went upon the tracks, and she did not do so, then she was guilty of contributory negligence," and the verdict must be for the defendant. The vice of this instruction, as the Court of Appeals in effect held, was that it told the jury that if plaintiff was of sufficient age to be capable of exercising ordinary care for her own safety to any extent, then it was her duty to look out for the approaching train, etc. She may have been entirely capable of taking care of herself under any circumstances, and yet not have been negligent in the circumstances attending her injury. The question that should have been submitted to the jury was whether in approaching the railroad crossing she exercised that degree of care which, under like circumstances, could reasonably have been expected of a girl of her years, capacity, and experience. Spillane v. Railroad, 111 Mo. 555, 562, 20 S. W. 293. There is no conflict between the ruling of the Court of Appeals as to this instruction and the holdings of this court.

III. The petition alleged:

"That at all the dates and times mentioned in this petition she (plaintiff) was and still is the infant daughter of Alvin Taylor and Pearl Catherine Taylor, and that she is prosecuting this suit by Alvin Taylor, her next friend."

The answer contained this paragraph:

"Further answering, defendant specifically denies that Alvin Taylor is the next friend of the plaintiff."

No proof was offered on the trial of the appointment of a next...