Merrielees v. Wabash R. Co.

• Decision Date: 14 May 1901
• Citation: 163 Mo. 470,63 S.W. 718
• Parties: MERRIELEES v. WABASH R. CO.
• Court: Missouri Supreme Court

63 S.W. 718

163 Mo. 470

MERRIELEES v. WABASH R. CO.

Supreme Court of Missouri, Division No. 1.

May 14, 1901.

CARRIERS — PASSENGERS — TRESPASSERS — INJURIES — ACCIDENT TO TRAIN — TICKETS — FORGERY — FRAUD — APPEAL — THEORY OF CASE — LIABILITY — NATURE — ORDINARY CARE — WILLFUL INJURY — OBJECTIONS — WAIVER — CONFLICT OF EVIDENCE — REVIEW — TRIAL AMENDMENT — CONTINUANCE — SURPRISE — TERMS — NEW TRIAL — NEWLY-DISCOVERED EVIDENCE — TIME FOR FILING — HARMLESS ERROR — DAMAGES — MEDICAL SERVICES — INSTRUCTIONS — LIMITATION OF LIABILITY.

1. In an action for injuries to a person riding on a freight train it was no defense that plaintiff was guilty of forgery, by reason of the fact that he was riding on a mileage ticket issued to another, and that he forged such other's name to the part detached by the conductor in payment of his fare, where it appeared that the owner of the ticket authorized plaintiff to so sign his name.

2. Where an action for injuries to a person riding on a freight train was dismissed as to a count basing his right on the theory that he was a passenger, and the case was submitted on instructions asked by both plaintiff and defendant, which declared that the plaintiff was a trespasser, a defense that defendant was not liable, because of plaintiff's fraud in representing himself to be the owner of a mileage ticket issued to another, which he induced the conductor to accept in payment of his fare, was thereby eliminated from the case.

3. Where both plaintiff and defendant, in a suit for injuries sustained by derailment of a freight train, tried the case in the circuit court on the theory that plaintiff was a trespasser on the train, but that defendant was bound to the exercise of ordinary care to prevent injury to him after it knew his peril, the court, on appeal, will not consider whether the defendant's liability to a trespasser is limited to willful and wanton injuries only.

4. In an action for injuries to a person riding on a freight train, defendant demurred to plaintiff's evidence as to the second count of his declaration, in which he sought to recover as a trespasser, and, the demurrer being overruled, defendant asked the court to charge that plaintiff could not recover if the jury found the defendant used ordinary care in stopping its train or in endeavoring to prevent the accident. Held, that if, by defendant's demurrer to the evidence, it intended to assert the proposition that defendant was not liable to plaintiff as a trespasser except for willful and wanton injuries, such theory was waived by its failure to stand on its demurrer, and by its request for charges requiring defendant to exercise due care.

5. Where, in an action for injuries to a person riding on a freight train, there was a conflict in the evidence as to whether the caboose could have been detached from the train, after the danger was known to defendant, in time to have avoided the injury, and that no attempt was made to do so, though the trainmen were requested by plaintiff and others to attempt to detach it, there was substantial evidence to support a verdict in plaintiff's favor, and hence a finding that defendant failed to use ordinary care will not be reviewed on appeal.

6. Plaintiff was injured while riding in the caboose of a freight train by its derailment, caused by the falling of a brake attached to the next car in front. The train was running up grade at a speed not as fast as a man could walk, and could have been stopped in 100 feet. The danger was discovered before the train reached a switch, and the conductor said there would be danger of derailing the caboose when the switch was reached. The train was run over 400 feet after it passed the switch before the accident occurred. There was a conflict in the evidence as to whether the conductor gave the engineer a simple stop signal or an emergency signal, but the train did not stop until after the accident. Held, that such evidence was sufficient to support a verdict in favor of plaintiff on the theory that the trainmen failed to use ordinary care to prevent the accident after the danger was discovered.

7. A trial amendment in an action for injuries on the ground of negligence, after all the evidence had been introduced without objection, which evidence was admissible under the complaint as it stood, the amendment merely narrowing the issue by specifying the negligence, and thereby limiting plaintiff's right to recover to proof of the specified acts of negligence charged, did not entitle defendant to a continuance for surprise.

8. Where defendant, in an action for injuries, was not entitled to a continuance for surprise by reason of a trial amendment which did not change the issues, but simply specified the general allegation of negligence in the complaint, defendant could not object that the court imposed as a condition to granting defendant a continuance that he pay all the accrued costs.

9. A supplementary motion for a new trial, on the ground of newly-discovered evidence, not filed until after the expiration of 17 days after the trial, is too late, and cannot be sustained.

10. Where, in an action for injuries to a person riding on a freight train, the complaint contained two counts, one of which was based on plaintiff's relation as a passenger, but on the trial plaintiff abandoned such count, and the court, at defendant's instance, instructed that he was a trespasser, the allegation as to a custom among traveling salesmen to use each others' mileage tickets, in plaintiff's reply, was thereby eliminated from the case, and hence any error in overruling defendant's motion to strike out such allegation was harmless.

11. Evidence that plaintiff, injured in a railroad accident, had been treated by several physicians at his request, and one of them, who testified, stated that his services were reasonably worth $200, was sufficient to sustain an instruction as to the measure of damages, permitting a recovery for necessary expenses for medical attention.

12. Where, in an action against a railroad company for injury to a person riding on a freight train, defendant claimed that plaintiff was not entitled to the care due a passenger, for the reason that plaintiff was illegally traveling on a mileage ticket issued to another, and not transferable, and on such contention plaintiff dismissed as to the count in his complaint in which he sought to recover as a passenger, and the case was submitted to the jury on the theory that plaintiff was a trespasser, defendant could not contend that it was not liable because of a release contained in such mileage ticket exempting it from liability for injuries sustained to the holder while riding on a freight train.

Appeal from Hannibal court of common pleas.

Action by A. F. Merrielees against the Wabash Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

This is an action for damages sustained by the plaintiff on July 29, 1895, while riding on defendant's freight train, near Clifton Hill. The original petition was in two counts. The first count was predicated upon the relation of passenger and carrier, while the second count simply stated that at the town of Huntsville the plaintiff entered into and upon defendant's caboose car attached to one of defendant's freight trains, and which was "provided, intended, and used for the transportation of passengers from Huntsville to Clifton Hill, for the purpose of being transported thereon from said town of Huntsville to said town of Clifton Hill," and that his presence thereon was well known to defendant's conductor and other servants from the time of his entrance thereon until the accident. The negligence, as charged in the second count in the original petition, and as amended upon the trial at the close of the whole evidence, is as follows: "That while said train of cars was running upon its said trip, and before its arrival at the station at said town of Clifton Hill, a certain brake or beam attached to, and forming a part of, the next car in front of said caboose car became and was detached from its proper place, and fell down, and was being dragged along and upon the rails and track of defendant's railroad, then and there constituting and producing a dangerous obstruction to said train, and especially to said caboose car, and rendering the same liable to be thrown from the track, and injuring the plaintiff. That, by means and by reason of the said obstruction so constituted and produced, the plaintiff became and was exposed to imminent and great peril and danger of being injured. That the aforesaid condition of the said brake or beam, and the said obstruction produced thereby, as well as the dangerous character thereof, and the plaintiff's exposure to such danger, and his liability to being injured thereby, was then and there known to the said conductor and other agents and servants of defendant then and there in charge of and operating said train and caboose car, and were so well known in time to have prevented and avoided injury to plaintiff, and by the exercise of reasonable and ordinary care and diligence, and the use of the means then at hand, said conductor and other agents and servants of defendant could and might have prevented and avoided the ensuing injury to plaintiff, as it was then and there their duty to do [amended by leave of court, at close of testimony, on February 26, 1898, by inserting at this place the following words: "In this, to wit, that said conductor and servants in charge of said train had time and opportunity to stop said train, and avoid injuring plaintiff, and then and there had time and opportunity and means at hand to detach said car, and so avoid said injury to plaintiff"]; yet, nevertheless, the said conductor and other agents and servants of defendant operating and in charge of said train neglected and disregarded their duty to the plaintiff in that behalf, by means and by reason whereof plaintiff...