Taylor v. Missouri Pac. R. Co

• Decision Date: 07 January 1924
• Docket Number: No. 3301.,3301.
• Parties: TAYLOR v. MISSOURI PAC. R. CO.
• Court: Missouri Court of Appeals

257 S.W. 511

TAYLOR v. MISSOURI PAC. R. CO.

No. 3301.

Springfield Court of Appeals. Missouri.

January 7, 1924.

Rehearing Denied January 23, 1924.

Appeal from Circuit Court, Scott County; Frank Kelly, Judge.

Action by Elizabeth Taylor, by next friend. Alvin Taylor, against the Missouri Pacific Railroad Company. Judgment for defendant. From an order granting a new trial, defendant appeals. " Affirmed.

Jas. F. Green, of St. Louis, and W. C. Russell, of Charleston, for appellant.

M. G. Gresham, of Sikeston, and J. L. Fort, of Dexter, for respondent.

COX, P. J.

Action for damages for personal injury. Verdict for defendant. Motion for new trial filed by plaintiff, and sustained, and defendant appealed.

We do not deem it necessary to give a detailed statement of the facts in this case, but shall call attention to such facts as seem pertinent to the questions involved as we proceed.

The order of the court sustaining the motion for new trial recited that the motion was sustained because the court had erred in giving instructions C and D to the jury on part of defendant. Before passing to a consideration of these instructions, we shall dispose of some other questions which appellant insists should require a reversal, with directions to enter judgment on the verdict, regardless of the alleged error in instructions C and D.

The petition is entitled "Elizabeth Taylor, by next friend, Alvin Taylor." It is alleged in the body of the petition that plaintiff is the infant daughter of Alvin Taylor and Pearl Cathrine Taylor, and that she is prosecuting this suit by Alvin Taylor, her next friend. The answer contained the following:

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

No evidence was offered to show that Alvin Taylor, father of plaintiff, had given bond as guardian or curator of his minor daughter or had been appointed as next friend before filing suit. Appellant contends that without such proof the action cannot be maintained. We understand the law differently. We think an infant may sue by its father who is the natural guardian of the child, without the formality of having the father appointed as next friend. Stat. 1919, §§ 371, 390, and 391; Brandon v. Carter, 119 Mo. 572, 583, 24 S. W. 1035, 41 Am. St. Rep. 673.

In the caption of the petition the plaintiff is described as "Elizabeth Taylor, by next friend, Alvin Taylor." In the body of the petition the allegation is made that plaintiff is the daughter of Alvin Taylor, and that she is prosecuting this suit by "Alvin Taylor, her next friend." The words "next friend" in both the caption and body of the petition may be considered as surplusage; but upon a retrial of the case the petition should be so amended, both in the caption and the body thereof, as to charge, specifically, that Elizabeth Taylor is a minor, and that she is prosecuting this suit by her father as her natural guardian.

Should judgment be obtained and collected the father should give bond before being permitted to handle the money. Higgins Guard. v. Hann. & St. Joe R. R. Co., 36 Ho. 418, 431; Spillane v. Mo. Pac. Ry. Co., 111 Mo. 555, 562, 20 S. W. 293.

The injury to plaintiff is alleged to have occurred at a public highway crossing. The alleged negligence of defendant is failure to ring the bell or sound the whistle. It is contended that there is no evidence that the crossing was a public crossing, and for that reason there was no showing that those in charge of the train were required to ring the bell or sound the whistle, Photographs introduced by defendant show that a largo public crossing sign was maintained by defendant at this crossing with the usual notice thereon: "Railroad Crossing Look Out for the Cars." Defendant by the maintenance of this crossing sign recognized the crossing as a public crossing, and it was not necessary for plaintiff to introduce other evidence on that question.

Of the instructions C and D for defendant, the giving of which caused the court to sustain the motion for new trial, 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 an 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...