Wagner v. Missouri Pacific Railway Co.

• Decision Date: 04 February 1889
• Parties: Wagner, Plaintiff in Error, v. The Missouri Pacific Railway Company
• Court: Missouri Supreme Court

10 S.W. 486

97 Mo. 512

Wagner, Plaintiff in Error, v. The Missouri Pacific Railway Company

Supreme Court of Missouri

February 4, 1889

Appeal from Callaway Circuit Court. -- Hon. G. H. Burckhartt, Judge.

Reversed and remanded.

Edwin Silver for plaintiff in error.

(1) All omissions and defects in the petition, if such in fact exist are cured by the answer. The latter avers expressly and in terms that deceased was not a passenger on defendant's train; that he was unlawfully and wrongfully thereon and was a trespasser. Plaintiff filed a general denial. Omission to state a material fact will be obviated if the other party, by his pleading, puts the matter in issue. Lemon v Chanslor, 68 Mo. 340; Strivers v. Howe, 62 Mo 473; Garth v. Caldwell, 72 Mo. 622; Hughes v. Carson, 90 Mo. 399. In the case at bar, the defendant, by its answer, distinctly and expressly made, tendered the issue not only that the deceased was wrongfully on the train, but that he was not a passenger. (2) When the rules of the company forbid the carrying of passengers on freight trains, but the conductor relaxes the rule and permits passengers to be carried, the company will be responsible for want of care in transportation. McGee v. Railroad, 92 Mo. 208; Dunn v. Railroad, 58 Me. 187; Creed v. Railroad, 86 Pa. 139; Railroad v. Cheneworth, 42 Pa. 382; Lucas v. Railroad, 33 Wis. 41; Wilton v. Railroad, 107 Mass. 108; Jacobs v. Railroad, 20 Minn.; 41 Wis. 142. (3) The deceased was not guilty of contributory negligence in riding on the freight train. The conductor merely suggested to him that it was better to ride on the flat-car, not that it was safer. This was at most but advisory, and the failure of deceased to leave the flat-car did not, as a matter of law, render him guilty of such contributory negligence as to bar recovery. Hicks v. Railroad, 64 Mo. 434. Besides the failure of deceased to leave the flat-car did not relieve defendant of its duty to exercise due care. Keith v. Peckham, 43 Me. 501; Jacobs v. Railroad, 20 Minn. 120; Creed v. Railroad, 86 Pa. St. 144. (4) The negligence of defendant's servants which caused the death of the deceased occurred after the alleged contributory negligence of the deceased in taking his position on the car. The latter was therefore not the proximate cause of the injury and the defendant is liable. Keim v. Railroad, 90 Mo. 314; Scoville v. Railroad, 81 Mo. 434; Werner v. Railroad, 81 Mo. 368; Strauss v. Railroad, 75 Mo. 185; Swigert v. Railroad, 75 Mo. 475. One person being in fault will not dispense with another using ordinary care. Butterfield v. Forrester, 11 East, 60; Davis v. Mann, 10 Mees. & W. 548; Radley v. Railroad, 18 Eng. Rep. [Moak] 37.

T. J. Portis and Smith & Krauthoff for defendant in error.

(1) The petition does not state facts sufficient to constitute a cause of action, in that it is not therein affirmatively alleged that the deceased, at the time of his injury, was a passenger lawfully or rightfully on defendant's train of cars. (2) The conveyance on which the deceased sustained his injury was shown by the uncontradicted evidence to have been an extra or special freight train not designed for the transportation of passengers, a supply and construction train expressly forbidden by the rules of the company to carry passengers. The day of the injury it was Sunday and no card or other trains carried passengers over said road on that day of which notice was published in the newspapers in the city of Jefferson where deceased resided. Here the deceased was carried in said train by sufferance of the employes of the company in charge of said train where neither sufferance or invitation was authorized by the course of their employment. Snyder v. Railroad, 60 Mo. 413; Whitehead v. Railroad, 22 Mo.App. 60; Eaton v. Railroad, 57 N.Y. 382. (3) A principal is not liable for the acts of his servants or agents beyond the sphere of his employment, and for employes of a railway to invite or permit persons to ride gratuitously is outside of their employment. Train-men are not hired for that sort of service, and it is not in their power to impose a burden upon their employers in that respect. So when one rides without defendant's permission, as when he is invited or suffered to ride gratuitously by defendant's employes, who have no right to carry any one free, there can be no recovery in case of injury. Snyder v. Railroad, 60 Mo. 413; Sygo v. Newbold, 9 Exch. 302; Eaton v. Railroad, 57 N.Y. 382; Robertson v. Railroad, 22 Barb. 91; Flower v. Railroad, 69 Pa. St. 210; Railroad v. Nichols, 8 Kan. 505; Moss v. Johnson, 22 Ill. 633; Quinn v. Perver, 24 N.Y. 102; Railroad v. Moore, 49 Tex. 31; Marvin v. Weber, 52 N.Y. 270; Elkins v. Railroad, 23 N.H. 275; Coal Co. v. Heman, 86 Pa. St. 418. (4) When the plaintiff offers no evidence that he was in the exercise of care, but on the contrary the whole evidence upon which the case rested showed that the deceased was careless, the court may rightfully instruct the jury as a matter of law that the action cannot be maintained. McKeen v. Railroad, 42 Mo. 79; Higgins v. Railroad, 36 Mo. 436; Adams v. Carlish, 21 Peck, 146; Lucas v. Railroad, 6 Gray, 64; Garrett v. Railroad, 16 Gray. (5) If the deceased was a passenger, then if he, by his own misconduct or negligence, contributed to the injury, there can be no recovery for such injury. Higgins v. Railroad, 36 Mo. 418; Sherman v. Railroad, 72 Mo. 62. (6) The plaintiff's evidence conclusively shows that the deceased was guilty of such contributory negligence as ought to preclude a recovery. Malay v. Railroad, 84 Mo. 270; Powell v. Railroad, 76 Mo. 80; Taylor v. Railroad, 86 Mo. 457; Railroad v. Jones, 95 U.S. 442; Daggett v. Railroad, 34 Io. 284; Railroad v. Clemmons, 55 Tex. 88; Railroad v. Lane, 83 Ill. 448; Hickey v. Railroad, 14 Allen, 429; Quinn v. Railroad, 51 Ill. 495; Ward v. Railroad, 11 Abb. [N. S.] 411.

Brace J. Black and Barclay, JJ., concurring; Barclay, J., in the result; Ray, C. J., and Sherwood, J., dissent.

OPINION

Brace, J.

In this action the plaintiff seeks to recover five thousand dollars damages for the negligent killing of her husband (Christopher Wagner) by defendant's servants.

The petition charges that her husband, on the eighteenth day of December, 1881, being on defendant's train of cars between the town of Russellville and the city of Jefferson, was injured and did die, and said injury and death resulted from and was occasioned by the negligence of the defendant, its agents and servants in running and operating its engine and train of cars on which said deceased was, in this, to-wit: That said agents and servants of defendant did negligently, improperly, carelessly and recklessly operate and run said train, with its engine and tender reversed, over a newly constructed roadbed at a highly improper, too great and injurious rate of speed, and did otherwise so carelessly and negligently run and manage said train that part thereof was thrown from the track and said train was wrecked, in consequence of which negligent, careless and improper conduct of defendant, its servants and agents, said Christopher Wagner was, on said December 18, 1881, injured and from said injury did on said day die.

The answer to plaintiff's petition was a general denial and also set up "that the deceased was not a passenger on said train of cars, but was wrongfully and unlawfully on said train, and a trespasser thereon, and further that said deceased was guilty of negligence, contributing in whole or in part to his injuries or death," in this, that he wrongfully got upon the flat-car next to the locomotive, which was a dangerous place, and refused to leave the same when requested so to do by the conductor. The replication denied the new matter set up in the answer.

At the conclusion of the plaintiff's evidence, the court sustained an instruction in the nature of a demurrer to the evidence and the jury returned a verdict for the defendant. Plaintiff's motion for a new trial having been overruled, the case is brought here by writ of error.

The evidence offered by plaintiff went to show that for some time prior to the accident, which occurred on Sunday, December 18 1881, the defendant had been operating the Jefferson City, Lebanon & Southwestern Railway, between Jefferson City and the town of Russellville, that during this time it ran, Sunday excepted, a daily mixed train, that is, one carrying both freight and passengers; that on the Sunday of the accident, the same train, made up in the usual manner, having same combination or passenger coach, and with the same conductor and crew as on week-days, was ordered by the defendant to proceed from Jefferson City to Russellville as a special or extra, to take supplies consisting of iron rails, spikes and the like, for the track-layers engaged south of Russellville in laying track; that about nine o'clock A. M., it left the depot at Jefferson City, having iron rails, etc., in the freight cars and a number of persons in its passenger coach, among whom was the deceased. The train proceeded a short distance from the depot in Jefferson City, when its further progress was interrupted by one of the freight cars running off the track. Thereupon the conductor returned to the depot, and while there the persons in the passenger coach got out, and a number of them, among them the deceased, went to the freight car next to the locomotive which was ahead of the break in the train. This was a box-car loaded with rails and was the only car taken out by the engine; it had no seats or accommodations for passengers, the combination car and the balance of the train being left at Jefferson City. When the conductor returned from the depot, he told those who had gone to the freight car, that they had better not...