4 S.W. 739 (Mo. 1887), McGee v. Missouri Pac. Ry. Co.

Citation:4 S.W. 739, 92 Mo. 208
Opinion Judge:Norton, C. J.
Party Name:McGee v. The Missouri Pacific Railway Company, Appellant
Attorney:Adams & Bowles and Thos. J. Portis for appellant. J. H. Rodes and A. H. Waller for respondent.
Case Date:June 06, 1887
Court:Supreme Court of Missouri
 
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Page 739

4 S.W. 739 (Mo. 1887)

92 Mo. 208

McGee

v.

The Missouri Pacific Railway Company, Appellant

Supreme Court of Missouri

June 6, 1887

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...

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