The State ex rel. Missouri Pacific Railroad Company v. Cox

• Decision Date: 18 December 1924
• Docket Number: 25313
• Citation: 267 S.W. 382,306 Mo. 27
• Parties: THE STATE ex rel. MISSOURI PACIFIC RAILROAD COMPANY v. ARGUS COX et al., Judges of Springfield Court of Appeals
• Court: Missouri Supreme Court

267 S.W. 382

306 Mo. 27

THE STATE ex rel. MISSOURI PACIFIC RAILROAD COMPANY v. ARGUS COX et al., Judges of Springfield Court of Appeals

No. 25313

Supreme Court of Missouri

December 18, 1924

Temporary writ discharged.

James F. Green and W. C. Russell for relator.

(1) At the date of the institution of this suit, both Alvin Taylor and Pearl Taylor were the natural guardians and curators of their daughter Elizabeth, "with equal powers, rights and duties." Sec. 371, R. S. 1919. (2) If, as respondents contend, plaintiff was suing by her natural guardian and the words "next friend" both in the caption and in the body of the petition were surplusage, the mother, Pearl Taylor, was a necessary party. Sec. 371, R. S. 1919. (3) Plaintiff alleges in her petition that she was prosecuting the suit by her "next friend, Alvin Taylor." She does not say in her petition that she is prosecuting the suit by Alvin Taylor and Pearl Catherine Taylor, natural guardians. She is bound by the allegations of her petition. In fact, parties are absolutely concluded by the statements contained in their pleadings. Davis v. Bond, 75 Mo.App. 32; Ramsey v. Henderson, 91 Mo. 560; Wilson v. Albert, 89 Mo. 537; Weil v Posten, 77 Mo. 284; Kuhn v. Weil, 73 Mo. 213. (4) The plaintiff, in her petition, among other things, makes allegations equivalent to saying that plaintiff and her mother, before they started across defendant's track closed their eyes and stopped up their ears. It is a confession of contributory negligence. These allegations are binding on this plaintiff. (5) With this train going thirty miles an hour, according to the allegations in plaintiff's petition, and the allegation that the defendant's servants could not, by the exercise of ordinary care, have seen the automobile until it got within thirty feet of the crossing and until the train got within one hundred and fifty feet of the crossing, no authorities are necessary to show that the case should not have been submitted to the jury on the humanitarian or last clear chance doctrine. Rollison v. Railroad, 252 Mo. 541; Degonia v. Railroad, 224 Mo. 564; Burge v Railroad, 244 Mo. 76; Markowitz v. Railroad, 186 Mo. 350. (6) The opinion of the Court of Appeals is directly in conflict with the following controlling decision of the Supreme Court: Porter v. Railroad, 60 Mo. 160, Sherman v. Railroad, 72 Mo. 63; Baxter v. Transit Company, 198 Mo. 1; Berry v. Railroad, 214 Mo. 593; Markowitz v. Railroad, 186 Mo. 350, 360; Bartley v. Ry., 148 Mo. 124, 142. (7) Where the verdict for defendant was the only verdict the evidence warranted, a new trial should not be granted because of erroneous instructions given at its request. Markowitz v. Railroad, 186 Mo. 350; Bartley v. Railway, 148 Mo. 142; Homuth v. Railway, 129 Mo. 642; Vogg v. Railway, 138 Mo. 181.

Gresham & Montgomery and J. L. Fort for respondent.

(1) The Supreme Court will go only to the opinion of the Court of Appeals for the facts. State ex rel. Wahl v. Reynolds, 272 Mo. 588; State ex rel. Shawhan v. Ellison, 273 Mo. 218; State ex rel. McNulty v. Ellison, 278 Mo. 42; State ex rel. Dunham v. Ellison, 278 Mo. 649; State ex rel. Brewery Co. v. Ellison, 287 Mo. 139. (2) The Supreme Court will consider only matters presented to and decided by the Court of Appeals. State ex rel. United Railways v. Allen, 240 S.W. 117; State ex rel. Agr. Ins. Co. v. Allen, 254 S.W. 194; State ex rel. Wabash Ry. Co. v. Trimble, 260 S.W. 1000. (3) The Supreme Court will examine opinion of Court of Appeals only to determine conflict with some decision of Supreme Court. State ex rel. Calhoun v. Reynolds, 233 S.W. 483; State ex rel. Contl. Ins. Co. v. Reynolds, 235 S.W. 88. (4) The Court of Appeals in its opinion simply held that where an infant plaintiff alleged in her petition facts showing that she was suing through her father, her natural guardian and curator with whom she resided, and that her father was her next friend to maintain such suit for her, the allegation relating to next friend may be disregarded, as surplusage, and the suit maintained by the father as natural guardian and curator. R. S. 1919, secs. 371, 390, 391; Temple v. Price, 24 Mo. 288; Spillane v. Railroad, 111 Mo. 555; Bush v. Fisher, 85 Mo.App. 5; Brandon v. Carter, 119 Mo. 572. By neither demurrer nor answer was her capacity to sue through her father as natural guardian specifically challenged, hence defendant waived the point. Berry v. Railroad, 214 Mo. 593; Baxter v. Railroad, 198 Mo. 8. If there was a defect in that the mother should have been joined as party plaintiff, or in failing to allege that Alvin Taylor had given bond as natural guardian, then it was a defect appearing on the face of the petition and defendant waived same by not demurring, and by answering and contesting the suit upon its merits. R. S. 1919, sec. 1550; State ex rel. Jones v. Chemical Works, 249 Mo. 702. Besides no mention of the mother as party was made in appellant's brief, court's opinion or motion for rehearing in Court of Appeals or in petition for certiorari, and will not be considered now. State ex rel. United Ry. Co. v. Allen, 240 S.W. 117.

Ragland, J. All concur, except White and Walker, JJ., absent.

OPINION

RAGLAND

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 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 Co., 99 Mo. 509; Neff v. Cameron, 213 Mo. 350; Berry v. Railroad, 214 Mo. 593.

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 many 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.] 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...