Anderson v. Missouri Pac. Ry. Co

• Decision Date: 22 May 1906
• Citation: 93 S.W. 394,196 Mo. 442
• Parties: ANDERSON v. MISSOURI PAC. RY. CO
• Court: Missouri Supreme Court

93 S.W. 394

196 Mo. 442

ANDERSON v. MISSOURI PAC. RY. CO

Supreme Court of Missouri, Division No. 2

May 22, 1906.

1. DEATH—CARRIERS—INJURIES TO PASSENGER —PETITION—SUFFICIENCY.

Under Rev. St. 1899, § 2864, providing in substance that, where any passenger dies from injury occasioned by the negligence and unskillfulness or criminal intent of any officer, agent, servant, or employé while managing any locomotive, cars, or train of cars, the owner of such railroad shall pay the sum of $5,000, a petition averring that at a certain time plaintiff's husband was a passenger on defendant's railroad, and that, while his train was standing on defendant's track at a station, another train on the same track collided with it, wounding and bruising him, from the effects of which he died, and specifically alleging that the said cars at the time belonged to and were being managed by defendant's officers, agents, servants, and employés, and that the injury was occasioned by the negligence and unskillfulness of said officers, etc., whilst so managing such train and locomotive, was sufficient; it not being essential to allege the particular acts of any particular servant or employé which occasioned the collision.

2. CARRIERS — PASSENGERS — TERMINATION OF RELATION.

A passenger who has purchased a ticket to a certain point, but who, on reaching such point, decides to go further, need not, in order to preserve his protection as a passenger, alight from the train and then re-enter, nor expressly notify the conductor of his purpose to continue his journey.

3. SAME—EVIDENCE—PRESUMPTIONS.

Where deceased, at the time of a collision, was in the coach used by defendant railroad for the purpose of transporting passengers, his residence being at a distant point where his family was, and the train having started to carry such passengers as were on to other points of destination along its line, the presumption was that deceased was lawfully in the coach.

4. SAME — POSITIVE EVIDENCE — SUBMISSION TO JURY.

Where, in an action against a railroad for wrongful death, it appeared that deceased, after reaching the point on defendant's line to which he had purchased a ticket, remained in the coach; that the residence of himself and family was at a station further along the road; and that, at the time of the collision causing his death, defendant's train had started—it was not essential, in order to authorize the submission of the case to the jury, to show by positive or direct evidence that deceased was a passenger at the time of the collision, or that it was his purpose to continue his journey.

5. SAME—INSTRUCTIONS—SUFFICIENCY.

Where, in an action against a railroad for wrongful death resulting from injuries received by deceased in a collision occurring after the train whereon he was a passenger had left the station to which he had purchased transportation, it was conceded that up to the time of reaching the station he was a passenger, an instruction, requiring the jury to find for plaintiff if they believed that deceased at the time of the accident was a passenger on defendant's train, and further charging that if they believed, from all the facts and circumstances in evidence, that deceased determined to continue his journey to the station whereat he resided, and remained on the train for that purpose, the fact that he had only paid his fare to the former station was no defense to

the suit, sufficiently required the jury to find that deceased was a passenger at the time of the accident.

6. DEATH—CARRIERS—INJURY TO PASSENGER— DAMAGES.

Rev. St. 1899, § 2864, provides that, where a passenger dies from an injury occasioned by the negligence and unskillfulness, etc., of any officer, agent, servant, or employé whilst running, conducting, or managing any locomotive, cars, or train of cars, the owner of such railroad shall forfeit the sum of $5,000. In an action for wrongful death, the petition proceeded on the theory that deceased was a passenger on defendant's train, and that his death was occasioned by the negligence and unskillfulness of the agents, servants, and employés of defendant while so running, etc., such train of cars and locomotives, and the evidence showed that defendant's train was run into by another train, causing the injuries from which deceased died; that defendant's conductor sent the brakeman back with a flag for the purpose of signaling the following train, but there was no evidence that he did so signal the train. Held, that the court properly confined plaintiff's recovery to section 2864, as such brakeman was a servant engaged with others in operating and managing the train.

Appeal from Circuit Court, Cooper County; James E. Hazell, Judge.

Action by Cornelia Anderson against the Missouri Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

There was a verdict and judgment for the plaintiff in the Cooper county circuit court, and this cause is here upon appeal by defendant. The judgment in this cause is predicated upon the following acts of negligence complained of in the petition filed by plaintiff: Plaintiff states that she is the widow of Robert Anderson, deceased. That the defendant is and was at the time hereinafter mentioned a corporation duly organized and existing under and by virtue of the laws of the state of Missouri, and as such running and operating a railroad in said state through and from the city of Nelson, in Saline county, to the city of Blackwater, in Cooper county. That defendant in the operation of said railroad is and was at said time a common carrier of passengers for hire between said points. That on the 5th day of June, 1902, the said Robert Anderson entered into a passenger car of defendant on its said railroad at said city of Nelson, a station on said railroad, as a passenger for transportation over said railroad to said city of Blackwater, and as such passenger was lawfully in said car which was part of and situated at or near the rear of a train of cars attached to a locomotive headed east on said railroad. That while said Robert Anderson was a passenger on defendant's said train as aforesaid, and while said train and locomotive was standing on defendant's railroad track at said station of Nelson, another train of cars drawn by a locomotive also headed east, and on the same railroad track as aforesaid, approached at high speed and ran into the rear end of and collided with the first above-mentioned train, upon which plaintiff's said husband was a passenger, with great force and violence, completely wrecking and demolishing the car in which the said Robert Anderson was situated, and wounding and bruising the said Robert Anderson, from the effect of which he then and there died. That the aforesaid car, train of cars, and locomotives at the time aforesaid belonged to and were being run, conducted, and managed by officers, agents, servants, and employés of the defendant, and the injury resulting in the death of the said Robert Anderson as aforesaid was occasioned by the negligence and unskillfulness of said officers, agents, servants, and employés whilst so running, conducting, and managing said car, trains of cars, and locomotives: Wherefore plaintiff has been damaged in the sum of $5,000, for which, together with costs of suit, she prays judgment against defendant. The answer to this petition consists of a general denial, followed by a special denial of any negligence on the part of the agents and servants of defendants, and a statement that whatever injuries plaintiff's husband may have received were the result of and occasioned by pure accident, without negligence, on the part of the agents and servants of defendant.

The trial of this cause was had on the 29th day of January, 1903. There is practically no dispute as to what the testimony tended to prove in this cause. There is no controversy over the fact that Robert Anderson was plaintiff's husband, and there is no contention that the suit was not instituted within the statutory period; that is, six months after his death. The testimony upon the trial tended to establish substantially the following state of facts: That Robert Anderson resided at Blackwater, a town and station on defendant's railway; that he left Blackwater on the afternoon of June 5, 1902, on defendant's west-bound passenger train for the city and station of Marshall on said railway; that he reached Marshall, and later on the same afternoon took passage on another of defendant's trains returning east toward Blackwater, his home; that the latter train reached the station of Nelson between Marshall and Blackwater late on said afternoon; that the train (a mixed stock and passenger train) stopped at Nelson 25 or 30 minutes, loading and unloading freight, and taking on stock cars; that, immediately after this train at Nelson started on its journey toward Blackwater, it was run into in the rear by another train going in the same direction, resulting in a collision and a wreck of the passenger coach of the forward train; that after the wreck rescuers found Robert Anderson in the wrecked coach, badly mangled; and that he died a few minutes after his removal from the wreck. The conductor of the train deceased was on testified that the latter paid his fare from Marshall to Nelson. It was admitted by defendant at the trial that the railway and trains mentioned were the property of the defendant, that said trains at the time of the collision were being operated by defendant's servants, and that Robert Anderson died as the result of injuries caused by said wreck. The evidence further showed at the trial that Anderson was on a regular train, running several hours behind its schedule time at Nelson; that, according to the defendant's regulations, it was the duty of its servants operating said train, when it stopped at Nelson, to send a signal man to the rear, and by the use of a signal flag, and by placing torpedoes on the track, warn approaching...