Siegrist v. Arnot

• Decision Date: 05 April 1881
• Citation: 10 Mo.App. 197
• Parties: JOHN H. SIEGRIST ET AL., Appellants, v. JESSE ARNOT, Respondent.
• Court: Missouri Court of Appeals

10 Mo.App. 197

JOHN H. SIEGRIST ET AL., Appellants,

v.JESSE ARNOT, Respondent.

St. Louis Court of Appeals, Missouri.

Apr. 5, 1881.

1. One who keeps horses and carriages for hire is not a common carrier, but is bound only to that degree of care which a prudent man, having due regard for his social obligations, would bestow upon such an undertaking.

2. One who undertakes to convey another in a carriage from one point to another, whether for reward or gratuitously, is bound to exert the measure of care and skill appropriate to the employment.

3. Where the driver of a carriage kept for hire, acting within the scope of his employment willingly permits another to ride in the carriage, in the absence of fraud or collusion, the owner of the carriage is liable for an injury received by such person, while so riding, where such injury is occasioned by the driver's negligence.

4. Where the injury is to one other than a fellow-servant, if the injury is caused by the negligence of a servant, the master is liable though he is guilty of no personal negligence.

5. One who, from an impulse of fear produced by the wrongful act of another, in attempting to escape danger acts without good judgment--this cannot be imputed to him as such contributory negligence as will preclude a recovery for such wrongful act of the other.

6. There are no degrees of negligence where the subject of the bailment is human life; but any culpable negligence is, in such case, “gross.”

7. Where one undertakes, though gratuitously, to do a thing requiring care and skill, an omission to bestow that care and skill is culpable negligence.

8. It is error to single out and comment upon certain facts, to the exclusion of others, in instructing a jury.

APPEAL from the St. Louis Circuit Court, BOYLE, J.

Reversed and remanded.

E. B. SHERZER and MARTIN & LACKLAND, for the appellants: The negligence of the servant renders the master liable, where the servant acts within the scope of his employment.-- Garretzen v. Duenckel, 50 Mo. 104; Winters v. Railroad Co., 41 Mo. 504; Higgins v. Water Co., 46 N. Y. 23; Wilton v. Middlesex, 107 Mass. 107. “The duty to carry safely one who is received for carriage is a public duty, and the payment of fare is not necessary to create it,” and this whether the carrier be public or private.-- Jacobus v. Railroad Co., 20 Minn. 125; Steamboat v. King, 16 How. (U. S.) 474. One who creates a danger is liable to the person endangered, though the latter, under the fear inspired by the danger, acts unwisely in attempting to avert it, and is injured.-- Nelson v. Railroad Co., 68 Mo. 595; Schultz v. Railroad Co., 44 Wis. 638. In the gratuitous carriage of human life any actionable negligence is “gross.” The use of the word “gross” is misleading unless explained.-- Harper v. Railroad Co., 44 Mo. 488; Railroad Co. v. Lockwood, 17 Wall. 357; Railroad Co. v. Arms, 91 U. S. 489; Lemon v. Chanslor, 68 Mo. 840; McPheeters v. Railroad Co., 45 Mo. 22.

FISHER & ROWELL, for the respondent: “The liabilities of a common carrier do not apply to those who let horses and carriages for hire.”--Cooley on Torts, 638. The defendant's contract to loan his carriages was a gratuitous bailment, and subject only to such liability as the law prescribes for that kind of a contract. A gratuitous bailor is only held for gross negligence, which is the omission of care, which even the most inattentive and thoughtless never fail to take of their own concerns.-- Gray v. Railroad Co., 64 Mo. 49; Lygo v. Newbold, 9 Exch. 302; Whart. on Neg., sect. 430; Gartside v. Proprietor, 4 Term Rep. 581; Lamb v. Railroad Co., 7 Allen, 98; Carr v. Railroad Co., 14 Allen, 448; Harper v. Railroad Co., 37 Conn. 272; Story on Bail., sects. 6, 374-390. “There can be no contract to transport safely, where there is no contract at all.”-- Norton v. Railroad Co., 15 N. Y. 449; Shear. & Redf. on Neg., sect. 264. If a person has no lawful right to be on a vehicle, he cannot recover damages, except for gross negligence, after the latter has notice of the person's presence.-- Ibid. The defendant's instruction is sustained by Fink v. Potter, 17 Ill. 406; Ingalls v. Bliss, 9 Metc. 1.

THOMPSON, J., delivered the opinion of the court.

This is an action for damages for injuries to the plaintiff, Mrs. Siegrist, alleged to have been caused by the negligence of a servant of the defendant. The defendant is a livery-stable keeper in St. Louis. The plaintiff was greatly injured by being thrown from a carriage belonging to the defendant and driven by his servant, under the following circumstances:-- Mrs. Garneau, assisted by Miss Hopkins, got up an entertainment, consisting of tableaux, at the Mercantile Library Hall, in St. Louis, for a charitable purpose. The defendant, at the request of Mrs. Garneau, donated several carriages, with their horses and drivers, to convey from their homes and back again, the young ladies and gentlemen who were to perform. Among them was the daughter of the plaintiff. The plaintiff, Mrs. Siegrist, had accompanied her, for the purpose of robing her and preparing her for the parts she was to take in the performance. At the close of the performance, Mr. Joseph Garneau, Jr., at the request of Miss Hopkins, attended and directed the ladies to their respective carriages. Mrs. Siegrist, under his direction, without objection from the driver, got into one of the defendant's carriages, and her little boy took a seat by the driver on the box. While conveying Mrs. Siegrist to her home, the horses ran away, and Mrs. Siegrist either jumped out of the carriage or was thrown out, and received very great injuries, for which the action was brought.

So far as the defendant is personally concerned, his conduct in the matter is entirely blameless; he acted very generously in donating horses, carriages, and drivers for the object named; and if he shall be compelled to pay damages for the very grievous injury which happened to Mrs. Siegrist, it will be in obedience to a rule of law which is founded in the soundest considerations of public policy, and which the courts are not at liberty to relax--the rule which, in the dealings of every man with the general public, identifies him with his servant or agent, when the latter is acting within the scope of his employment or agency, and makes him responsible for the negligent injuries done by the latter, although he himself is guiltless of any fault. In these cases the courts cannot, where there is room for doubt among fair-minded men as to the facts themselves, or as to the inferences of law to be drawn from the facts, decide the controversy; they can only aid in its decision by carrying out, to the best of their understanding, the effort of the law, which is to bring the case to the arbitrament of twelve fair-minded men, who have been properly advised as to the rules of law which they should apply to the facts which they may find to exist.

The learned judge who sat in the trial of this case, did right in submitting it to the jury; but it seems to us that he put it to them on mistaken views of law, for which we feel constrained to reverse the judgment and remand the cause for another trial. We shall notice the instructions given and refused somewhat in detail, as the case must go back for a new trial.

1. We may premise that the employment which the defendant assumed on the night in question was not that of a public or common carrier (Cooley on Torts, 638), and consequently the strict care and diligence which the law exacts of public carriers of passengers does not furnish the measure of his liability. But he was, nevertheless, bound to bestow upon the undertaking which he voluntarily assumed, by himself or by his servants, that degree of care which a prudent man, having due regard for his social obligations, would have bestowed upon it; which, escaping from all definition, means simply, that degree of care which a jury may reasonably say he ought to have bestowed under the circumstances and considering that human life was in his keeping.

2. The circumstance that the defendant undertook the service gratuitously does not make him the less liable, if he would have been liable under the same circumstances had a reward been paid. The governing principle here is, that whenever person undertakes an employment which requires care or skill, whether he undertakes it for reward or gratuitously, a failure to exert the measure of care and skill appropriate to such employment is culpable negligence, and if damages result therefrom an action will lie. Steamboat v. King, 16 How. (U. S.) 469; Railroad Co. v. Derby, 14 How. (U. S.) 468; Nolton v. Railroad Co., 15 N. Y. 444; Jacobus v. Railroad Co., 20 Minn. 125; Rose v. Railroad Co., 39 Iowa, 246; Todd v. Railroad Co., 3 Allen, 118; s. c. 7 Allen, 207; Railroad Co. v. Michie, 83 Ill. 428.

3. If a person by fraud or stealth gets upon a carrier's vehicle, without the knowledge of the carrier or his servant, and is either killed or injured, albeit through the negligence of the carrier or his servant, no action can be maintained for such death or injury, and this for reasons which are obvious to the understanding of every man. Toledo, etc., R. Co. v. Brooks, 81 Ill. 245; Chicago, etc., R. Co. v. Michie, 83 Ill. 427; Toledo, etc., R. Co. v. Beggs, 85 Ill. 80. But this proposition need not be enlarged upon; for there was no evidence from which the jury could have inferred that this was the position of Mrs. Siegrist, nor did the learned judge give the jury any instruction upon such a hypothesis.

4. If a servant, charged by his master with a particular employment, does a particular act in the course of such employment from which damages happen to a third person, the master will be liable to such person, although the servant had no orders to do the particular act, or in doing it went against the master's express orders, provided the act was of such a nature that the master would have been liable if it had been in conformity with his...