Rawlings v. St. Louis & S. F. R.Co
| Decision Date | 02 March 1915 |
| Docket Number | 17272 |
| Citation | 175 S.W. 935 |
| Parties | RAWLINGS v. ST. LOUIS & S. F. R.CO |
| Court | Missouri Supreme Court |
On Motion for Rehearing, April 1, 1915.
Appeal from St. Louis Circuit Court; Daniel D. Fisher, Judge.
Reversed and remanded.
W.F Evans, A.E. Haid, and E.T. Miller, all of St. Louis, for appellant.
Ferriss Zumbalen & Ferriss, of St. Louis, and Worthington, Reeve & Green, of Jacksonville, Ill., for respondent.
Action by Leora Rawlings against the St. Louis & San Francisco Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.
The plaintiff is the widow of Albert E. Rawlings, who was killed by the derailment of a freight car on the defendant's railroad, which was being transported from the city of Parsons, Kan., on January 14, 1910, to a point in Oklahoma. She brings this action to recover therefor under sections 419 and 420 of the Code of Procedure of the state of Kansas (Gen. St. 1909, § 6014, 6015), as reenacted by the Legislature of that state in 1909; said sections being, to wit:
Plaintiff alleges in her petition that, had her said husband survived his injuries, he might have maintained an action against the defendant. The petition further states that on the 11th day of January, 1910, plaintiff's said husband left the town of Franklin Morgan county, Ill. , in charge of a car load of his household furniture, horses, stock, etc., attached to a Burlington train under a through contract of shipment made with that railroad for the transportation of said effects and the plaintiff to Peckham, Okl. The petition then states, to wit:
The petition then alleges the circumstances of the negligent derailment of the freight car attached to said train, in which the property of said Rawlings was stored, and wherein he was riding, and then recites the two sections of the Kansas statutes above quoted, and other facts entitling her, as widow, to maintain the action, and prayed for Judgment for $ 10,000.
There was a second count to plaintiff's petition which was dismissed by her at the conclusion of all the evidence, and hence need not be noticed.
The answer of the defendant to the fore going first count of plaintiff's petition admitted that Albert E. Rawlings, plaintiff's husband, left Illinois in charge of a car load of household furniture and property over the Burlington Railroad, and that when said train reached Kansas City, Mo., the said Rawlings "entered into a contract with this defendant for the transportation of said property from Kansas City to Peckham, Okl., and that said property was received by this defendant pursuant to and upon the terms contained in said contract and upon no other, and that the car containing it was placed in a freight train of defendant leaving said Kansas City, Mo., on or about January 13, 1910, but defendant denies each and every other allegation in said first count of said first amended petition contained." The answer to said first count in plaintiff's petition then set up the written contract referred to by filing a copy supported by the affidavit of defendant, and averred that the said Rawlings was advised of its terms at the time he executed it, and consented to the limitations of liability assumed by defendant when the particular freight rate paid by him was demanded. The answer further averred that, by paragraph 14 of said contract, it was stipulated that the person accompanying and in charge of the live stock for the shipper should remain in the caboose while the train was in motion, and that the failure of such person to observe this and other regulations printed on the back of the contract should be prima facie evidence of negligence on his part in case of injury; that among the provisions contained on the back of said contract, and which were also signed and executed by said Rawlings, was the one whereby he agreed that he would remain in the caboose of said train while said train was in motion, and would get on and off of said caboose only while the same was standing still; that it was further provided by section 19 of said contract that no agent of the defendant had any authority to waive, modify, or amend any of the provisions of such contract. The answer further avers that, at the time of the injury complained of, the "said Rawlings was not in the caboose attached to said train, but was on or in some other portion of said train, and that the act of the said Rawlings in failing to comply with the provisions of paragraph 14 of said contract, and of the other provisions thereof hereinabove stated and in said contract contained," was negligence, by reason whereof he (the said Rawlings) suffered the injuries sued for. The answer then alleged certain releases of any and all liability contained in the contract, which portion of the answer was stricken out on the trial and need not be recited. The answer concluded with an averment that the injuries "the said Albert E. Rawlings sustained were occasioned by his own negligence in riding upon a portion of the defendant's train other than the portion thereof provided by defendant, in which the said Rawlings should ride, to wit, the caboose attached thereto," and prayed defendant be discharged with costs.
The reply simply took issue upon the new matter alleged in the foregoing answer.
It appeared on the trial that Albert E. Rawlings, a farmer near Franklin, Ill., 35 years of age, decided to move to Oklahoma and chartered a freight car for the purpose of transporting himself and his utensils and live stock to said destination; that his live, stock comprised five head of horses. One Edward Spires, a brother-in-law of Rawlings, desired to make a similar move, and he also chartered a car, taking his household goods and the same number of horses belonging to him, and the two made the trip together; their cars being adjacent in the train until the accident, resulting in the death of said Rawiings. Rawlings paid $ 82.80 to the initial carrier in Illinois. The through contract which; he received from it was exchanged by him when he reached Kansas City for the live, stock contract which he then entered into with the defendant, and under which he and his property were being transported at the time of his injury. When he reached Cherokee, Kan., and after the cars containing said Rawlings and his property was transferred to a side line running to Parsons, Kan., and when he was uncertain as to what was being done with it while the train was moving over a switch, he asked the conductor "if they were going-if they were ready to pull out?" And the conductor answered, "Yes; they were going to Parsons." Said Rawlings remained in the car containing his property. From Cherokee the train reached Parsons. As the train was leaving Parsons, the two cars containing the household goods and property of Rawlings and his brother-in-law were overthrown by a derailment. By the overthrowing of Rawlings' car he was killed. The car in front of these two ran off the track, as did one or two behind them, but no other cars on the train were overthrown, and the caboose did not leave the track at all. Neither did several cars Immediately ahead of the caboose leave the track. There was evidence tending to show that the conductor of the train had observed Rawlings in the same car with his property when the train left Parsons; that he had been seen in the same car at Kansas City,...
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