Sykes v. St. Louis & San Francisco Railroad Co.

• Decision Date: 23 December 1903
• Parties: SYKES v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant
• Court: Missouri Supreme Court

77 S.W. 723

178 Mo. 693

SYKES v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant

Supreme Court of Missouri, First Division

December 23, 1903

Transferred from St. Louis Court of Appeals.

Circuit court judgment reversed.

L. F Parker and J. T. Woodruff for appellant.

(1) The principal question involved in this case is, whether a railroad company owning a car which, while temporarily absent from its line is, without its knowledge or consent, loaded with freight destined to a distant point and is in the course of transportation carried a part of the intermediate distance, but neither the initial nor terminal part, by the line of the company owning the car, but under no traffic arrangement, and for which an arbitrary charge is made, is liable for an injury suffered while unloading such car by an employee of the consignee, who is entirely disconnected with either line, by reason of a defect in the floor thereof. Defendant contends there is no such liability, for the reason that a railroad company in such circumstances is under no duty to see to it that one of its cars is in fit condition to be unloaded by an employee of the consignee, and hence there is no right of action. If any duty exists, it must arise out of some contract violated, some duty non-performed, or some duty imposed by law in addition to or dependent of, any contract duty. It has been the law in this State since 1862 and it has been the law in England and the Federal courts of this country for a longer period, that a third person can not maintain an action for injuries resulting to him from the breach of the terms of a contract by either of the parties thereto. Gardner v. Armstrong, 31 Mo. 535; Kinealy v. Railroad, 69 Mo. 666; Munn v. Railroad, 86 Mo. 347; Gordon v. Livingston, 12 Mo.App. 267; Lampart v. Gas Light Co., 14 Mo.App. 376; Roddy v. Railroad, 104 Mo. 245; Heizer v. Threshing Machine Co., 110 Mo. 605; Winterbottom v. Wright, 10 Mees. and Wellsby 109; Curtin v. Somerset, 21 A. 244; 140 Pa. St. 70; Bank v. Ward, 100 U.S. 195; Sawyer v. Railroad, 35 N.W. 671; 38 Minn. 103; Shearman & Redfield, Negligence (5 Ed.), sections 8 and 116. (2) It can not be said that any contractual relation existed between plaintiff and defendant, which in any manner tended to establish the relation of master and servant, for all of the evidence is that plaintiff was in the exclusive employment of the car wheel company, who directed his work and paid him for it. Indeed, he testifies himself that he never did anything for the defendant, and knew none of the Frisco officials or employees. It is plain that the defendant owed no duty to plaintiff as a servant, because no such relation existed. Speed v. Railroad, 71 Mo. 308; Roddy v. Railroad, 104 Mo. 246; Wood, Master and Servant, sec. 281; 1 Shearman & Redfield, Negligence (5 Ed.), sec. 160.

Thos. B. Harvey for respondent.

Appellant contends for only one proposition, to-wit, that it was neither the initial nor the final carrier, but an intermediate carrier, and, therefore, not liable. Even if the premises were true, we do not admit the correctness of the conclusion. But, as a matter of fact, defendant railroad company, in its relation to the car wheel company and its employees, was the initial, the final and the only carrier. It was not a connecting carrier, because the evidence, the very waybill of the Fort Scott & Memphis railroad, shows that it billed said car only to Nichols Junction, the connecting point with the defendant railroad, and that said Fort Scott & Memphis railroad not only did not make charges from Kansas City through to St. Louis, but not even any from Kansas City to Nichols Junction. And the waybill of the defendant railroad shows that it made and collected from the consignee, the car wheel company, charges from Nichols Junction to the premises of the car wheel company, to-wit, $ 26.13, which included $ 2 which it, and not the consignee, paid the Missouri Pacific for switching privileges. The Missouri Pacific railroad performed no service for the car wheel company, and was under no obligation to said company or its employees with reference to the condition of said car. The Missouri Pacific was, in delivering said car on the premises of the car wheel company, the agent and servant of its employer, the St. Louis & San Francisco Railway Company, defendant herein. Upon the proposition that a carrier who does not receive from the preceding carrier, under and by virtue of the original contract for through transportation, is not a connecting carrier, and that under the circumstances of this case, defendant railroad company was both the initial and final carrier, we refer the court to the following authorities: McCann v. Eddy, 133 Mo. 59; Nimes v. Railroad, 107 Mo. 475; Nanson v. Jacob, 12 Mo.App. 125. There seems to be something absurd in the proposition that a railroad can start out from its possession one of its own cars in an unfit and unsafe condition for the purposes for which it is to be naturally used, and receive said identical car back into its possession a few days afterwards, and then claim that, because said car in the meanwhile has been upon some other road in making the round trip, therefore, the other road becomes the initial carrier. The evidence in this case shows that the floor of said car was rotten and full of holes for weeks before this accident; and that it passed through the hands of the inspector of defendant railroad about the 18th of the month at Nichols Junction, as it was about to leave said road; and, again, ten days afterwards when it returned to said railroad, its owner, and was then delivered to plaintiff's employer, to be unloaded so that its possession and use might be resumed by said owner, and said employer of the plaintiff being required to pay the aforesaid amount of $ 26.13 to defendant railroad company for transportation of said car and freight from Nichols Junction to the point on the premises of the car wheel company, where plaintiff was injured while engaged in unloading said car. Appellant makes a most desperate effort by a critical and strained interpretation of many authorities, to avoid what seems to me to be a very plain proposition, and one well supported by the great weight of authority, as well as by common sense, to-wit, that a railroad company which bills and delivers to a consignee in consideration for certain charges to be paid by consignee, a carload of freight, to be unloaded by said consignee's employeees, owes a duty to said employees to deliver a car in fit and safe condition for them to go upon for the aforesaid purpose. Appellant admits that the initial or final carrier would owe a duty to, and be liable to, the consignee himself, but not the consignee's servant, who does for the consignee the work of unloading, which it was known would have to be done and which was invited to be done. Under this reasoning there could never be any liability under the circumstances of such a case as this, it matters not how rotten and dangerous might be the cars or other instrumentalities delivered to the corporation. In support of the proposition that where the instrument furnished is to be used in a joint undertaking or in a matter beneficial to both parties, a duty is owed to each individual of a class which may naturally be expected to handle said instrument under the terms of the undertaking between the two parties, I respectfully call the attention of the court to the following authorities: Elliott v. Hall, 15 Q. B. D. 315; Heaven v. Pender, 11 Q. B. D. 503; Indermaur v. Dames, L. R. 1 C. P. 274; 2 C. P. 311; Railroad v. Snyder, 55 Oh. St. 342; Moon v. Railroad, 46 Minn. 106; Railroad v. Booth, 98 Ga. 20; Horne v. Mechin, 115 Mass. 326; Glenn v. Winters, 40 N.Y.S. 659; Lee v. Railroad, 1 Am. Neg. Rep. 208; Spaulding v. Granite Co., 34 N.E. 1134; Olson v. Fuel Co. 77 Minn. 528; Hoosier Stone Co. v. Railroad, 131 Ind. 575.

OPINION

MARSHALL, J.

This is an action for personal injuries. The plaintiff recovered fifteen hundred dollars damages in the circuit court. The defendant appealed to the St. Louis Court of Appeals, and that court reversed the judgment and ordered the case remanded to the circuit court for a retrial. One of the judges of that court concurred in reversing the judgment, but not in remanding the case, and deemed the order remanding the case to be in conflict with the decision of this court in Roddy v. Railroad, 104 Mo. 234, and for this reason that court certified the case to this court, under the sixth amendment to article six of the Constitution, and the case is therefore here for determination, as in case of jurisdiction obtained by ordinary appellate process.

The suit was originally against both the defendant railroad and the St. Louis Car Wheel Company. The trial court nonsuited the plaintiff as to the St. Louis Car Wheel Company, and the plaintiff recovered a judgment in that court against the railroad company.

The case made is this:

The plaintiff was a common laborer in the employ of the St. Louis Car Wheel Company. That company was engaged in the business of making and repairing car wheels. Its place of business was located between the tracks of the Wabash and Missouri Pacific railroads, and each of said roads had switch tracks running into and upon the property and place of business of the car wheel company, over which cars were run carrying new wheels from or old wheels into the place of business of the car wheel company. The defendant had no tracks running to the premises of the car wheel company. It was a part of the plaintiff's business to unload the old wheels so brought to the premises of the car wheel company, and he had been so engaged for about three years before the date of the accident complained of.

On January 17, 1898,...