Whitehead v. St. Louis, Iron Mountain & Southern Railway Co.

• Decision Date: 10 June 1889
• Citation: 11 S.W. 751,99 Mo. 263
• Parties: Whitehead v. The St. Louis, Iron Mountain & Southern Railway Company, Appellant
• Court: Missouri Supreme Court

11 S.W. 751

99 Mo. 263

Whitehead v. The St. Louis, Iron Mountain & Southern Railway Company, Appellant

Supreme Court of Missouri

June 10, 1889

Appeal from Washington Circuit Court. -- Hon. John L. Thomas, Judge.

Affirmed.

T. J Portis and Geo. H. Benton for appellant.

(1) The petition fails to state facts sufficient to constitute a cause of action. Whitehead v. Railroad, 22 Mo.App 60; Snyder v. Railroad, 60 Mo. 413; Eaton v Railroad, 57 N.Y. 382; S. C., note of Redfield, J., 13 Am. L. Reg. 665, 672. (2) The court erred in the instruction given to the jury on its own motion. Railroad v. Bartram, 10 Ohio St. 459; Evans v. Railroad, 56 Ala. 246; Railroad v. Nuzenn, 50 Ind. 141; Railroad v. Applewhite, 50 Ind. 540; Cheney v. Railroad, 11 Md. 121; Railroad v. Proctor, 1 Allen, 267; Johnson v. Railroad, 46 N.H. 213; Flower v. Railroad, 69 Pa. St. 210. (3) The court erred in refusing to instruct the jury as requested by defendant. Authorities, supra.

Dinning & Byrns for respondent.

The facts and circumstances of this case make defendant liable to plaintiff as a passenger. The boy was in the caboose with the consent and approval of the conductor in charge of the train. The conductor represented the company. McGee v. Railroad, 92 Mo. 218; O'Donnell v. Railroad, 9 P. F. Smith, 239; Railroad v. Chenewith, 2 P. F. Smith, 379; Wood on Railroads, p. 1083; Baltimore City v. Klein, 61 Md. 33; Siegrist v. Arnot, 86 Mo. 200; Steamboat v. King, 16 Howard, (U. S.) 474; Dunn v. Railroad, 58 Me. 187; 86 Penn., p. 144; 20 Minn., p. 125; Walton v. Railroad, 107 Mass. 108, and cases cited; Ramsden v. Railroad, 104 Mass. 117.

OPINION

Black, J.

Plaintiff, by his guardian, brought this suit to recover damages for injuries, and recovered a judgment for five thousand dollars from which defendant appealed.

As objections are made to the petition itself, the sufficiency of the evidence to support the verdict, and to the giving and refusing to give instructions, it is necessary to deal somewhat in the details of the case. The petition states that plaintiff entered a caboose car attached to one of defendant's freight trains, in which it carried passengers; that the defendant's agents permitted plaintiff to enter the car as a passenger, and then undertook to carry him from De Soto to Belmont. The circumstances of the accident are then set out, coupled with the various allegations of negligence on the part of defendant, which circumstances will appear from the following statement of facts as disclosed by the evidence.

Frey was a brakeman on the train in question, and boarded with the plaintiff's mother at De Soto. The plaintiff, a lad fourteen years of age, desired to go over the road with Frey, and the plaintiff's mother gave her consent, provided the conductor would permit him to go. Frey and the boy got on the freight train at De Soto at about seven o'clock in the afternoon, at which time the train left. It does not appear what was said to or by the conductor, but it does appear that the boy remained in the caboose without objection. The boy's presence in the caboose, and his purpose to make the trip, without the payment of fare, was known to the conductor, and the only inference to be drawn is, that he gave his consent to the project.

At about two o'clock in the morning, and some fifty miles distant from De Soto, the train, which was composed of twenty-two loaded freight cars and the caboose, reached the top of a hill. As it passed over the hill, the caboose and four cars became detached, leaving the conductor, two brakemen and the boy in the caboose. The engineer did not discover the loss of a part of his train until he began to ascend another grade. To avoid a passenger train he went on to a station, five miles distant, and there got orders and returned with the engine to get the lost cars. In the meantime the caboose and four cars came to rest at the bottom of the grade, some two miles from the place where the train parted. The boy was then asleep in the caboose to the knowledge of the conductor, and two brakemen, but was not waked up by them.

Whilst the caboose was at rest, one brakeman went forward to signal the engine on its return. The other went about a quarter of a mile up the hill to flag another freight train which was known to be in the rear. It appears this rear freight train had met with a like accident at the top of the hill, and the forward part of the train, composed of some sixteen or eighteen cars, had but one brakeman on it, so that the train was not under the control of the engineer. He says he saw the signal when going down and around a curve, and that he resorted to all means at his command to bring his train to a halt, but could not stop it, and it ran into the caboose. In the collision the boy's arm and leg were broken; the leg had to be amputated; the boy was still asleep. The evidence fails to show what the conductor was doing, save that he was present at the time of the accident. Considering the grade, frost on the rails, and the short distance at which the signal was displayed, it is left in doubt whether the train could have been stopped in time to avoid a collision, had the accident to it not occurred.

The evidence shows that defendant carried passengers for hire on its local freight trains, but not on through freight trains. The train in question was a special through train. The rules of defendant forbade the carriage of passengers on this and like through trains. There is nothing in the outward appearance of the cars or caboose to indicate any difference between through and local freight trains, though the latter are designated on the time cards displayed at stations.

On this evidence, the court gave the following instruction:

"If you find, from the evidence, that plaintiff was riding on the caboose attached to a freight train of the defendant corporation, with the knowledge and consent of the agents and employes in charge of said train, and that these agents and employes knew of the peril to which said Whitehead was exposed, and that he did not know it, and, by the exercise of ordinary care, could not have known it, that the agents and employes knew of his peril in time to have informed him of it, or in time to have removed him out of danger, and that they failed to do either, and that they were guilty of negligence in not informing him of his peril, or in not removing him out of danger, and, by reason of such negligence, on the part of said agents and employes, said Whitehead received the injuries complained of, then you will find the issues for him."

1. There can be no doubt but a railroad company, being a carrier of freight and of passengers, may use separate trains for freight and for passengers, and may exclude freight from one and passengers from the other. Railroad v. Bartram, 11 Ohio St. 457; Dunn v. Railroad, 58 Me. 187. If the company assumes to carry passengers for hire upon its freight trains, it must exercise the same degree of care as is required in the operation of its regular passenger trains, the difference only being that the passenger submits himself to the inconvenience and danger necessarily attending that mode of conveyance. McGee v. Railroad, 92 Mo. 208; Wagner v. Railroad, 97 Mo. 512.

This leads us to the specific objection made to the petition, which is, that, as it shows the plaintiff was injured whilst in the caboose attached to a freight train, it should contain a direct allegation that authority was given by the company to the agent, in charge of it, to carry passengers; for, without such permission from the company, it is insisted, the defendant owed no duty whatever to the plaintiff. There is no law which prohibits a railroad company from carrying, or persons from riding, in the caboose of a freight train. When one is permitted to take a caboose for the purpose of transportation, by the consent of those agents in charge of the train, he is presumed to be there of right. It is not necessary that he should set out the rules of the company and allege a compliance therewith. If there has been a known violation of the rules of the company by the plaintiff, that is a matter of defense, and must be asserted by the company. Here it is not only stated that defendant's freight trains have a caboose attached to each, and in which it permits passengers to ride, but it is further stated that the plaintiff, desiring to go to Belmont, "they, said agents and servants, permitted him to enter said caboose car as a passenger, who, then and there, agreed and undertook to carry and convey him," etc. This petition states more than enough to show that plaintiff was rightfully on the train, and the objection made to it is without a particle of merit.

Again the proposition that the defendant owes no duty whatever to one riding upon a...