Higgins v. Hannibal & St. Joseph R.R. Co.

• Decision Date: 31 October 1865
• Parties: HATTY HIGGINS, INFANT, BY ELIZA HIGGINS, HER GUARDIAN, Respondent, v. HANNIBAL AND ST. JOSEPH RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

36 Mo. 418

HATTY HIGGINS, INFANT, BY ELIZA HIGGINS, HER GUARDIAN, Respondent,

v.HANNIBAL AND ST. JOSEPH RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1865.

Appeal from Hannibal Court of Common Pleas.

On the trial the appellant proved by J. T. K. Hayward, the general superintendent for the company, and his son who was his clerk, that there had been notices put up inside the passenger coaches and on the baggage car of said train in 1859, and that they were up at the time of the accident; that said notices, through accidents, had been all destroyed or lost; that he and his clerk had made diligent search for copies of said notices in all places where they had been, or were likely to be found, but that they had not succeeded in finding any copy of said notices. The appellant then offered to prove by secondary evidence the contents of these notices. The plaintiff objected to the introduction of such evidence. The court sustained the objection, and rejected the evidence as inadmissible, on the ground that it was improper, irrelevant, and had no bearing on the issue in this case; to which the defendant at the time excepted.

Defendant then offered to prove by witnesses that at the time of the accident, notices were posted up in the baggage car, and also in the passenger car of the train, on which said Higgins was at the time of the accident, in words and figures following: “No passengers are allowed to stand or ride on the platform of the cars, or in any baggage, wood or freight car; and any one violating this rule will do so entirely at his own risk.--J. T. K. Hayward, Gen'l Sup't.” And thereupon the court sustained an objection, and rejected the evidence as inadmissible.

At the request of the respondent the court gave the following instructions to the jury:

1. By the answer in this case, defendant admits it was on the 16th day of September, 1861, the owner of the railroad, cars, locomotive, &c., named in the plaintiff's petition; and admits that Thomas G. Higgins, on the 16th day of September, 1861, was traveling on said railroad, and while so traveling on said railroad the said Thomas G. Higgins was killed, and did die from an injury received on the said railroad, and that his said injury and death was occasioned by a defect and insufficiency in said railroad. If the jury find from the evidence that the said Thomas G. Higgins, at the time of receiving said injury and death, was a passenger on said railroad, and that the plaintiff was and is the minor child of the said Thomas G. Higgins (and his only minor child), the jury will find for the plaintiff on the first count of plaintiff's petition, and assess the damages at five thousand dollars, unless the defendant has shown to the satisfaction of the jury that the defect or insufficiency in said railroad was not a negligent defect or insufficiency.

2. In order to constitute the said Thomas G. Higgins a passenger on said railroad under the law, it is not necessary that he should actually have paid any passage money or fare: the defendant had the right to demand from him the fare or passage money paid by other travelers on said railroad, and if the defendant declined or neglected to collect said fare or passage money from said Higgins, the fact does not constitute the said Higgins less a passenger on said railroad.

3. If the jury find from the evidence that the said Thomas G. Higgins was lawfully upon the railroad of the defendant, and while on the said railroad his death was caused by the wrongful act, neglect, or default of the defendant, in the not keeping in safe and secure condition the said railroad or any part thereof; and if the jury further find from the evidence that the plaintiff herein was, at the said date of said Thomas G. Higgins' death, and is his only minor child, then the defendant is liable to plaintiff in damages, and the jury will find for the plaintiff, and assess her damages at such sum as the jury may think proper, from all the evidence, not exceeding five thousand dollars.

4. If the defendant by its servants undertook to carry Thomas G. Higgins along the Hannibal and St. Joseph railroad, and while so conveying him along said railroad the said Higgins was injured and killed by means of a defect or insufficiency in any part of said railroad, or of any culvert on said railroad; and if the jury believe from the evidence that the plaintiff is, and was, at the time of the said injury and death, the minor child of said Higgins, then the defendant is liable to the said plaintiff for the injury and death of said Higgins, caused or occasioned by said defect or insufficiency, although no compensation was to be paid to the company for conveying said Higgins.

5. Although the jury may find, from the evidence, that the said Thomas G. Higgins was, at the time of the injury and death aforesaid, traveling in the baggage car on said railroad, this fact will not preclude a recovery in this case, if the jury shall find from the evidence that said Higgins was in said baggage car with the knowledge of the conductor, and without objection from him, even though the jury may find from the evidence that said Higgins might or would not have been injured if he had been in the passenger car when the accident that resulted in his death occurred.

6. If the jury find from the evidence that the said Thomas G. Higgins was received into the cars of the defendant by the conductor of the train, and the train was a passenger train running for the carrying of passengers for hire, the law presumes that the said Higgins was received as a passenger, and as such he was entitled to all the privileges and rights accruing to any other passenger, unless the evidence shows to the satisfaction of the jury that he was received on said train as a hand or employee on said train to assist in working and running the said train.

7. Unless the jury find from the evidence that the said Higgins was in the employment of the defendant, and by virtue of said employment was bound to perform service, and entitled to wages from the defendant on the day and at the time he was killed, then said Higgins did not on said day stand in the attitude of a servant to defendant, nor of a co-servant with the employees, or co-servant conducting or managing the train on which the accident occurred.

To the giving of which instructions the appellant at the time excepted.

The defendant asked the court to give the following instructions to the jury:

1. If the jury believe from the evidence that Thomas G. Higgins was employed by the defendant to act as brakeman on one of its trains on its road, and on the morning of the 16th of September, 1861, he got into the baggage car of the defendant's passenger train bound west, and paid no fare, but acted and was treated as an employee by the conductor of said train; and when said train got out to the culvert at or near the seven-mile post on the defendant's road, the baggage car in which said Higgins was riding was precipitated from the track and down an embankment, and the said Higgins was thrown out of the car and killed, they will find for the defendant, notwithstanding they may believe from the evidence that said Higgins was not acting as such brakeman at the time of such accident, and notwithstanding the plaintiff was an infant, and only child of said Higgins.

2. If the jury believe from the evidence that Thomas G. Higgins was employed by the defendant to act as brakeman on one of its trains on its road, and on the morning of the 16th of September, 1861, he got into the baggage car of the defendant's passenger train, bound west, and paid no fare, and acted and was treated as an employee by the conductor of said train; and when the said train got out to the culvert at the sevenmile post on defendant's road, the baggage car was precipitated from the track and down an embankment, and said Higgins was thrown out of said car and killed, they will find for the defendant, notwithstanding they may believe from the evidence that said Higgins was not acting as such brakeman at the time of the accident.

3. If the jury believe from the evidence that Thomas G. Higgins was killed on the 16th of September, 1861, in consequence of a part of the culvert at the seven-mile post on defendant's road being defective by reason of an unusually heavy rain, the night before, having washed out the lower part of said culvert, and said defect could not be seen by the engineer in charge of the locomotive attached to the train while in the discharge of his duty; and they further believe from the evidence that said engineer was a safe, skillful and prudent engineer, and that he exercised reasonable care and skill in running his locomotive that morning, and in watching for defects and obstructions upon the track, they will find for the defendant.

4. If the jury believe from the evidence that Thomas G. Higgins was a passenger on defendant's train in the baggage car, and shall further believe that the passengers were, by the rules and regulations of the company prohibited from riding in the baggage car, and that said Higgins had notice of said prohibition at and before the time of the accident, and they further believe from the evidence that the defendant furnished sufficient room inside its passenger cars for the proper accommodation of the passengers, they will find for the defendant.

5. If the jury shall believe from the evidence that Thomas G. Higgins was not, at the time of the accident which resulted in his death, in the employ of the defendant; and shall further believe, that, by the general rules and regulations of the defendant, its engineers and conductors were prohibited from admitting persons not in its employ to ride in the baggage car, and that said Higgins was aware of said rules and regulations, and was permitted to ride in the baggage car by the conductor, without paying fare, and was killed while so riding, he was a wrong-doer. The permission of the conductor conferred no...