McGee v. Missouri Pac. Ry. Co.
| Decision Date | 06 June 1887 |
| Citation | 4 S.W. 739,92 Mo. 208 |
| Parties | McGee v. The Missouri Pacific Railway Company, Appellant |
| Court | Missouri Supreme Court |
Appeal from Monroe Circuit Court. -- Hon. Theodore Brace, Judge.
Affirmed.
Adams & Bowles and Thos. J. Portis for appellant.
(1) The court erred in giving plaintiff's second instruction. It is too general and indefinite. It told the jury that if they found certain acts of negligence on defendant's part, and that plaintiff, while exercising due care on his part, fell down the embankment and was injured, they must find for the plaintiff. This is simply an abstraction. The jury should have been instructed that they must take into consideration all the circumstances of the case, the darkness of the night the knowledge possessed by plaintiff of the locality, etc and from them find whether it was prudent or not to alight from the train at the place and in the manner he did. Price v. Railroad, 72 Mo. 418, 419. (2) The defendant had a right to make reasonable regulations as to the mode of transporting the plaintiff as a passenger. Logan v. Railroad, 77 Mo. 663; Johnson v Railroad, 46 N.H. 213; Cheeney v. Railroad, 11 Met. 121; Railroad v. Bartram, 11 Ohio St. 457; Railroad v. Nozum, 50 Ind. 141. (3) Passengers must take the responsibility of informing themselves of the every-day incidents of railway traveling. Mitchell v. Railroad, 51 Mich. 236; Railroad v. Hazzard, 26 Ill. 373. (4) It is the duty of a person about to take passage on a railroad train to inform himself when, where, and how he can go and stop according to the regulations of the railroad company. And if he makes a mistake, not induced by the railroad company, against which ordinary care on his part in this respect would have protected him, he has no remedy against the company for the consequences. Beaucamp v. Railroad, 56 Texas, 239; Railroad v. Applewhite, 52 Ind. 540; Railroad v. Nozum, 50 Ind. 141; Cheeny v. Railroad, 11 Met. 121; Railroad v. Proctor, 1 Allen, 267; Johnson v. Railroad, 46 N.H. 213; Railroad v. Bartram, 11 Ohio St. 457; Dietrich v. Railroad, 71 Pa. St. 436; Railroad v. Randolph, 53 Ill. 510. (5) By his ticket, a passenger acquires only the right to be carried according to the custom of the road. He cannot insist on being carried out of the customary course of the road. Railroad v. Randolph, 53 Ill. 511. (6) No negligence can be imputed to the defendant. The evidence shows that the conductor was forbidden to carry passengers on the train in question, it being a through freight train, and the fact that plaintiff was carried, or that he had frequently ridden on freight trains, had no tendency to prove a usage, on the part of defendant, in conflict with this regulation. The conductor had no power to repeal or alter it, and no right to violate it, and the instances testified to by the plaintiff's witnesses are not shown to have come to the knowledge of the governing officers of defendant. The reception of plaintiff by the conductor as a passenger (if indeed he was so received), was not within the scope of his authority, and was in disobedience of positive instructions in that regard. Johnson v. Railroad, 46 N.H. 213-221; Smith v. Railroad, 44 N.H. 332; Elkins v. Railroad, 23 N.H. 287 [3 Foster]; Murch v. Railroad, 29 N.H. 99 [9 Foster]; Beebe v. Ayers, 28 Barb. 283; Tibbetts v. Moore, 19 N.H. 369; Martin v. Great Falls Co., 9 N.H. 51. (7) The act of the conductor, in receiving the plaintiff's ticket, did not bind him to stop his train at a station, or at any place convenient for the plaintiff to alight, or at any place other than the exigencies of the service in which the train was engaged demanded. Railroad v. Hatton, 60 Ind. 12; Railroad v. Randolph, 53 Ill. 513. (8) Defendant's instruction, in the nature of a demurrer to the evidence, should have been given. Plaintiff's evidence shows such contributory negligence as precludes his recovery. Nelson v. Railroad, 68 Mo. 593; Kelly v. Railroad, 70 Mo. 604; Henry v. Railroad, 76 Mo. 293; Lennox v. Railroad, 76 Mo. 86; Powell v. Railroad, 76 Mo. 80; Murch v. Railroad, 29 N.H. 9 [9 Foster]; Mackey v. Railroad, 27 Barb. 528; Railroad v. Goddard, 25 Ind. 185-199; Railroad v. Leahey, 10 Mich. 198; Railroad v. Steinberg, 17 Mich. 127; Railroad v. Miller, 25 Mich. 279; Railroad v. Coleman, 28 Mich. 452; Railroad v. Campeau, 35 Mich. 471; Snoboda v. Ward, 40 Mich. 424; Downey v. Hendrick, 46 Mich. 501; Hassenger v. Railroad, 48 Mich. 209; Cockle v. Railroad, L. R. 5 C. P. and cases cited; Eckerd v. Railroad, 30 N.W. 615.
J. H. Rodes and A. H. Waller for respondent.
(1) It conclusively appears from the evidence that defendant's ticket agent at Moberly and its conductor, Malone, were both duly authorized agents of the company with reference to its passenger traffic, and defendant is bound by what they said and did. 2 Wood's Railway Law, sec. 355, p. 1413; Hutch on Carriers, sec. 269; Wharton on Agency, sec. 162; Marshall v. Railroad, 78 Mo. 616; Railroad v. Fix, 88 Ind. 381; Railroad v. Pierce, 47 Mich. 277; Railroad v. Gilbert, 22 A. & E. R. R. Cases, 406; Wilton v. Railroad, 107 Mass. 108; Prince v. Railroad, 21 A. & E. R. R. Cases, 152. (2) It is wholly immaterial what the rules of the company were with respect to the train in question if plaintiff was directed to take passage thereon by the authorized agents of the company. Logan v. Railroad, 77 Mo. 668; Hicks v. Railroad, 68 Mo. 338; Creed v. Railroad, 86 Pa. St. 139; Gradin v. Railroad, 30 Minn. 217; Derby v. Railroad, 14 Howard, 486. (3) Although the defendant's servants may have been prohibited by the rules of the company from carrying passengers on this train, yet if plaintiff had no notice, or information of said rule, and was directed to said train by defendant's said ticket agent, and was received as a passenger by said conductor and paid his fare, and defendant at the time was regularly carrying passengers on some of its freight trains, and passengers were habitually carried on all of its freight trains, then plaintiff was rightfully on said train as a passenger notwithstanding the rule. 2 Wood's Railway Law, 1044-45; Dunn v. Railroad, 58 Me. 187; Lucas v. Railroad, 33 Wis. 43; Irvine v. Railroad, 23 A. & E. Ry. Cases 518; Railroad v. Hoest, 93 U.S. 296. (4) Defendant having received the plaintiff as a passenger on its said freight train owed him the same degree of care which it owes to passengers on regular passenger trains. Thompson on Car. of Pass., sec. 20, p. 234; Railroad v. Hoest, 93 U.S. 296; Railroad v. Dickerson, 59 Ind. 317; Railroad v. Mahling, 30 Ill. 9; Railroad v. Kessler, 18 Kansas, 523; Railroad v. Beaver, 41 Ind. 493; Hazard v. Railroad, 1 Biss. 503; Edgerton v. Railroad, 39 N.Y. 227. (5) Defendant was guilty of gross negligence toward plaintiff in announcing Paris station and bringing the train to a stop at an unusual and unsafe place to alight, and by other acts inducing him to believe that he was required to alight, then and there, and in failing to warn plaintiff of the dangerous character of the place and in failing to furnish him a light by which to leave the train. Cockle v. Railroad, L. R. 7 C. P. 321; Cartwright v. Railroad, 52 Mich. 606; Railroad v. Buck's Adm'r, 96 Ind. 347; Railroad v. Whitfield, 44 Miss. 466; Weller v. Railroad, L. R. 9 C. P. 126; Railroad v. Hendricks, 41 Ind. 48. (6) Before a demurrer to the evidence could be sustained by the court, it must have affirmatively appeared that the contributory negligence of the plaintiff and not the negligence of the defendant was the proximate cause of the injury. Buesching v. St. Louis Gas Light Co., 73 Mo. 229; Kistner, Ex'r, v. City of Indianapolis et al., 8 Am. and Eng. Corp. Cases, 420. (7) When the station has been announced, and the train stopped, passengers may rightfully assume that they may safely alight from the car, unless notified to the contrary; and if no light is furnished them they are not chargeable with negligence for leaving it in the darkness. Beach on Contributory Neg. 173; Leslie v. Railroad, 88 Mo. 51; Railroad v. Buck's Adm'r, 96 Ind. 347; Cartright v. Railroad, 52 Mich. 609; Cockle v. Railroad, L. R. 7 C. P. 321; Weller v. Railroad, L. R. 9 C. P. 126; Railroad v. Farrell, 31 Ind. 408; Railroad v. Van Horn, 38 N. J. Law, 133; Millman v. Railroad, 66 N.Y. 642; Dice v. W. T. & L. Co., 8 Oregon, 60; McKimble v. Railroad, 139 Mass. 542. (8) It is declared as a matter of law by the courts that a passenger is not guilty of contributory negligence in trusting that the carrier will discharge its duty toward him, and will not expose him to unnecessary danger; and if the carrier's inducements lead him into danger the carrier is estopped, in a certain sense, from making the defence that the acts so induced are negligent. Beach on Contributory Neg., sec. 23, p. 71; Moberly v. Railroad, 17 Mo.App. 542; Brassell v. Railroad, 84 N.Y. 241; Railroad v. Ogler, 35 Pa. St. 71; Fowler v. Railroad, 18 W.Va. 581; Kellogg v. Railroad, 26 Wis. 223. (9) Plaintiff's second instruction is accurately based on the facts, and correctly and sufficiently declares the law and was liberal to defendant. Hyatt v. Railroad, 19 Mo.App. 293; Stafford v. Railroad, 22 Mo.App. 343; Railroad v. Clark, 74 Ala. 443. (10) The court did not err in admitting evidence of the custom of defendant to carry passengers on all its freight trains; knowledge on the part of the governing officers of the corporation being implied from the notoriety of the custom. Lawson on Usages and Customs, sec. 21, pp. 40, 41, 42; Wood on Master and Servant, sec. 401, p. 791. (11) The court did not err in the admission of testimony showing the stopping-place of north-bound freight trains at Paris. Tibby v. Railroad, 82 Mo. 299; Brassell v. Railroad, 84 N.Y. 241; Wood v. Railroad, 49 Mich. 372. (12) The award of damages...
To continue reading
Request your trial