Anderson v. Missouri Pacific Railway Co.

• Decision Date: 22 May 1906
• Citation: 93 S.W. 394,196 Mo. 442
• Parties: CORNELIA ANDERSON v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

93 S.W. 394

196 Mo. 442

CORNELIA ANDERSON v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant

Supreme Court of Missouri, Division Two

May 22, 1906

Appeal from Cooper Circuit Court. -- Hon. Jas. E. Hazell, Judge.

Affirmed.

M. L Clardy, Wm. S. Shirk and John Cashman for appellant.

(1) The court erred in refusing to sustain defendant's objection to the introduction of any evidence. The petition is fatally defective. It states no act of negligence against defendant. General averments of negligence will not meet the requirements of the law. Gurley v. Railroad, 93 Mo 450; Waldhier v. Railroad, 71 Mo. 514; Harrison v. Railroad, 74 Mo. 364; Edens v. Railroad, 72 Mo. 212; Troth v. Norcross, 11 Mo. 630; Jacquin v. Railroad, 57 Mo.App. 340; Leslie v Railroad, 88 Mo. 50; Marshall v. Railroad, 78 Mo. 610; Pier v. Heinrichoffen, 52 Mo. 333; Moss v. Railroad, 49 Mo. 167; Whitehead v. Railroad, 22 Mo.App. 60. This rule applies in cases of passengers. Leslie v. Railroad, 88 Mo. 50; Marshall v. Railroad, 58 Mo. 50; Jacquin v. Railroad, 57 Mo.App. 340. A carrier of passengers is not an insurer, and acts complained of must state they were negligently committed. Waldhier v. Railroad, 71 Mo. 514. The facts in this case show that plaintiff had paid his fare from Marshall to Nelson and gave no notice of his intention to go further. He ceased to be a passenger upon arrival at Nelson and sufficient time to depart from the train. After this defendant owed him no duty except to not knowingly and willfully injure him. Under this state of the proof the petition was wholly insufficient to authorize a recovery. Authorities in point 1, supra; Smith v. Railroad, 113 Mo. 70; Raming v. Railroad, 157 Mo. 507. (2) After a reasonable time had elapsed for plaintiff to leave the train defendant owed him no further duty. The conductor was not bound to make special inquiry to ascertain if those at their destination had taken their leave. Straus v. Railroad, 75 Mo. 185; Culberson v. Railroad, 50 Mo.App. 561; Hendricks v. Railroad, 136 Mo. 548; Railroad v. Cohn, 53 S.W. 698. Before deceased was entitled to the protection due to passengers he must show that he made a second offer to become a passenger and was accepted as such by defendant. Schaefer v. Railroad, 128 Mo. 64; Schepers v. Railroad, 126 Mo. 665. (3) Under the circumstances of this case the term "passenger" had a peculiar technical legal meaning and should have been explained. Harmon v. Donohoe, 153 Mo. 263; State v. Strong, 153 Mo. 548; State v. Sprague, 149 Mo. 409; Morgan v. Durfee, 69 Mo. 469; Wiser v. Chesley, 53 Mo. 547; Atteberry v. Powell, 29 Mo. 429; Bowles L. S. Co. v. Hunter, 91 Mo.App. 333; Rowen v. Railroad, 82 Mo.App. 24; Day v. Railroad, 81 Mo.App. 471; Jordan v. Webber M. Co., 72 Mo.App. 325; Hester v. Ins. Co., 69 Mo.App. 186; Horine v. Bone, 69 Mo.App. 481; Dry Goods Co. v. Schooley, 66 Mo.App. 406; Mason v. Stocks Yards Co., 60 Mo.App. 93; Railroad v. Dawley, 50 Mo.App. 480.

W. G. & G. T. Pendleton and W. M. Williams for respondent.

(1) The petition contained proper averments of negligence. The act complained of was set forth with reasonable particularity, and then charged to have been negligently done. These averments are identical with those heretofore approved by this court. An allegation that defendant "did by the servants and agents in charge of said car, and its servants in charge of another of the cars, so carelessly manage and conduct said cars as to cause and suffer the same to collide," has been held sufficiently specific. Malloy v. Railroad, 173 Mo. 79; Magrane v. Railroad, 183 Mo. 129; Rinard v. Railroad, 164 Mo. 270; Sullivan v. Railroad, 97 Mo. 113. Besides, defendant omitted to move to make the petition more definite and certain, but confined its objection on this point to the introduction of any evidence by the plaintiff. (2) Defendant's demurrer to the evidence was properly overruled. (a) It was admitted that plaintiff's husband was killed by the collision between defendant's trains. The collision itself was prima facie evidence of negligence, and the testimony was far from demonstrating that it could not have been avoided by proper care and attention. 2 Thompson on Negligence, sec. 2754; Hutchison on Carriers (2 Ed.), sec. 800; Magrane v. Railroad, 183 Mo. 128; Wilbur v. Railroad, 110 Mo.App. 694. (b) The court could not say as a matter of law that there was no evidence tending to show that plaintiff's husband was a passenger on defendant's train at the time he was killed, even though the jury should accept the conductor's story as true, which they were not bound to do. The fact that deceased was in the car provided by defendant for the accommodation of its passengers authorized the presumption that he was rightfully there. "Every one riding in a railroad car is presumed prima facie to be there lawfully as a passenger, having paid or being liable to pay his fare, and the onus is upon the carrier to prove affirmatively that he was a trespasser." Railroad v. Book, 98 Am. Dec. 234; Railroad v. Thompson, 9 N.E. 234; Gillingham v. Railroad, 11 L.R.A. 798. (3) The judgment was for the right party. There was practically no dispute about the facts upon which the right of plaintiff's husband to be treated as a passenger depends, and under such conditions it is immaterial, even though instructions should assume the existence of facts clearly proven. Carrol v. Railroad, 88 Mo. 239; Albert v. Railroad, 106 Mo.App. 643.

OPINION

FOX, J.

There was a verdict and judgment for the plaintiff in the Cooper 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 employees 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 employees whilst so running, conducting and managing said car, trains of cars and locomotives.

"Wherefore plaintiff has been damaged in the sum of five thousand dollars, 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 twenty-five or thirty 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...