Thе 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 charаcter of the crossing, which was fully set forth. . Negligence *32 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 opiniоn 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 stаted 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 cоntrol 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 negligenсe, 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 thereоf. This automobile was struck by a train of defendant at a crossing, and the effect of this Instruction ‘O’ was to hold the plaintiff responsible for the negligence of her mother. ...
“Without reviewing the cаses at length, we think that an examination of the cases decided since the Still-son case [Stillson v. Railroad,
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.,
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 ^11 ^me 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 сapable 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 apрroaching the railroad crossing she exercised that degree of care, which, under like circumstances, could reasonably have been expected of a girl of her yеars, capacity and experience. .[Spillane v. Railroad,
III. The petiti'on alleged: “that at all the dates and times mentioned in this petition she (plaintiff) was
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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 aрpointment of a next friend. Relator contended in the Court of Appeals that on this state of the record the trial court should have sustained its demurrer to the evidence, and that thе giving of Instructions <£C” and ££D” was therefore harmless error, if error at all. "With respect to this contention the court held that plaintiff could sue by her father, as her natural guardian, without the formality of having him appointed as next friend, and that as the petition alleged that plaintiff was the daughter of Alvin Taylor and that she was prosecuting this suit by ££Alvin Taylor, her next friend,” the words “next friend,” could be treated as surplusage. It is claimed by relator that this holding is in conflict with two decisions of this court: Porter v. Railroad,
It is obvious that the crux of the decision of the Court оf Appeals under review lies in its construction of the petition. For with the words “next friend” stricken out it clearly appears' from the petition that
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while plaintiff was a minor yet she was represented in the proceeding by Alvin Taylor, her father, whom the law makes her natural guardian. And we have repeatedly held, in construing relevant statutes, that a suit by a minor can be commenced and prosecuted by his natural guardian where he has no legal guardian. [Brandon v. Carter,
The construction placed upon the petition' by the Court of Appeals did-not cоntravene any rule of decision laid down in the Porter and Sherman cases. On the contrary, that construction, obviating’ as it did a barren technicality, one that did not remotely affect еither the jurisdiction of the court or the merits of the case, conformed to the spirit of the statute (Sec. 1257, R. S. 1919), as well as to that of numerous decisions of this court. [Jones v. Steele,
There is another angle to the question under consideration which has obviously escaped the attention of the relator. If the petition had contained a substantive averment that thе appointment of Alvin Taylor as next friend had been duly made in the mode pointed out by law, without disclosing that he was also plaintiff’s father, and that allegation had been specially traversed in the answer, defendant, in the absence of any proof in support of the allegation, would not have been entitled to a directed verdict. The issue thus made by the pleаdings would have related merely to relator’s capacity to sue, and in no wise to the merits of the controversy; it would have been simply a matter of abatement. Upon defendant’s raising the point of failure of proof with respect to such issue, by demurring to the evidence at the close of plaintiff’s case, plaintiff at that stage of the trial would have beеn entitled to have had the appointment of a next friend then made (Jones v. Steele, supra), and upon her failure to take such course, the defendant would have been entitled to have had the proceeding dismissed, and nothing more. So that if the Court of Appeals had *36 accepted relatbr’s construction of the petition, it could not have remandеd the cause with directions to the trial court to re-instate the judgment and verdict for defendant, as relator insists it should have done, simply because a failure of proof of the allеgation of the appointment of a next friend would in no event have entitled the defendant to a judgment on the merits.
IY. Relator finally urges that the giving of Instructions C and D was not prejudicial errоr, because the petition on its face discloses that plaintiff was guilty of contributory negligence as a matter of law. It does not appear from the opinion of the Court of Appeals that such contention was made in that court. In any event it is without merit. The question of plaintiff’s contributory negligence was clearly for the jury.
As it does not appear that the rulings of the Court of Appeals herein referred to contravene in any respect the decisions of this court, the writ should be quashed. It is so ordered.