Berry v. Missouri Pac. Ry. Co.
| Citation | 124 Mo. 223,25 S.W. 229 |
| Court | Missouri Supreme Court |
| Decision Date | 05 February 1894 |
| Parties | BERRY v. MISSOURI PAC. RY. CO.<SMALL><SUP>1</SUP></SMALL> WAGNER v. SAME. ZUENDT v. SAME. |
1. Deceased, on a Sunday, took a seat in a caboose of a construction train on which the conductor had no authority to take passengers. It was made up as the regular week-day trains, there being no other car for passengers, and was manned by the same crew. The advertisement in the papers only mentioned trains on week days and was silent as to trains on Sundays, but it was not shown that deceased had ever seen the advertisement. The road master testified that on the preceding Saturday one of the deceased, for himself and the others, who lived with him, asked permission of him to go on the Sunday train, but was told that passengers were prohibited on it. It was not shown that this refusal was communicated to the others. The conductor made no objection to the presence of deceased or others in the caboose, but when the train broke down, and it was necessary to drop the caboose, and go on with the flat and box cars only, he told them to get off, as there would be no way for them to get back; but, on their saying that they would take the chances of returning, he said no more; but at a station further on he told them that if they were back in 20 minutes they would not be left. No fare was tendered or asked. Held, that the evidence would not support a finding that they were pasengers. Martin, J., dissenting.
2. Defendant's train, while going down a grade of 60 feet to the mile, with engine and tender reversed, left the track, and deceased who were on the train, were killed. The roadbed was old, but had not been used till two months before the accident, when it had been covered with six inches of fresh dirt. The testimony of several railroad men was that there was no curve within a quarter of a mile, and they were supported by the map of the route. Others testified that within 500 yards there was a curve of 2 feet, and that there was an extra curve of 6 inches where the train went off. The testimony as to the danger of running with tender reversed, and also as to the effect of the road being new, was conflicting. The rate of speed testified to was from 12 to 15 miles an hour, and the highest rate at which, under the circumstances, the train could safely run, was set at from 10 to 15 miles an hour. The actual cause of the accident was not shown. Held, that there was evidence to support a finding of negligence on the part of defendant in operating the train. Per Martin, J., on the theory that deceased were passengers. Per Black, Brace, and Barclay, JJ., on the theory that deceased were on the train with the knowledge and consent of the conductor, and that ordinary care was due them. Sherwood, Gantt, and Burgess, JJ., dissenting, on the theory that they were not passengers, but trespassers, in which case the negligence must be gross, and no presumption would arise from the fact that the train left the track.
3. Deceased, who were killed in the wreck of a train, caused by its leaving the track, were not guilty of contributory negligence by reason of sitting out on a flat car, though the conductor had told them he would rather they would go into a box car next behind, as it was more comfortable, safer, and better there. Sherwood, Gantt, and Burgess, JJ., dissenting.
4. Deceased having been on defendant's train with the consent of the conductor, defendant at least owed them ordinary care; and therefore, though the instructions referred to them as passengers, still, they having limited defendant's duty to ordinary care, such reference could not be prejudicial. Per Brace and Barclay, JJ.
In banc. Appeal from circuit court, Osage county; Rudolph Hirzel, Judge.
Actions by Virginia T. Berry, Elizabeth Wagner, and Antonia Zuendt against the Missouri Pacific Railway Company. Judgments for plaintiffs. Defendant appeals. Reversed.
H. S. Priest and W. S. Shirk, for appellant. Edwin Silver, Ewing & Hough, and I. W. Boulware, for respondents.
These separate actions were commenced in April, 1882, under section 2121 of the Revised Statutes of 1879, which constitutes section 4425 of the Revised Statutes of 1889, in behalf of widows, to recover damages for the death of their husbands, charged to have been caused by the negligence of appellant, a railway company, in operating and managing its train of cars while they were being carried upon it. On Sunday, December 18, 1881, the appellant was operating by its officers and employes a train of cars on the Jefferson City, Lebanon & Southwestern Railway, which was under its control as a branch road, between Jefferson City and Russellville. The train consisted of an engine and tender reversed, the tender being in the lead, a flat car following the engine, which was itself succeeded by a box car and four more flat cars. The train was on its way to Jefferson City, and was in charge of a conductor, engineer, fireman, and two brakemen. On the flat car next to the engine and in front of the box car five persons were riding, viz. Green C. Berry, Christopher Wagner, William Zuendt, Oscar Monnig, and Christopher Gimminhart. The train had gone about two miles from Russellville towards Jefferson City. While descending a grade in the road at that point, the tender and engine jumped from the track, followed by the flat car next to the engine, along with the box car and another flat car. The flat car next to the engine was thrown so that one end rested on the pilot. The box car was forced over a part of the flat car, and the flat car next to it was lifted from the track. The engine, tender, and first flat car were badly broken. The box car and flat car following it were not materially damaged. Upon inspection of the wreck, Berry, Wagner, and Monnig were found dead, the two former lying on or under the wreck and the latter lying clear of it. Zuendt was entangled in the wreck, from which he was taken in an unconscious condition to his home in Jefferson City, where he died from the effect of his injuries 18 days afterwards. Gimminhart, whose body was scalded and leg broken, was helped from the wreck, and soon after died from his injuries. These leading facts are undisputed, and about them are grouped the disputed facts and the disputed inferences from admitted or established facts, which will be considered in connection with the issues to which they relate. In April, 1882, the plaintiffs, who are the widows, respectively, of Berry, Wagner, and Zuendt, commenced these actions in the circuit court of Cole county, from which they were taken by change of venue, and finally tried in the circuit court of Osage county, at its April term, 1890. A previous trial terminated in a nonsuit under instructions adverse to the plaintiffs, from which an appeal was taken to this court, which will be found reported in 97 Mo. 512, 10 S. W. 486.
The petitions are all alike, except in the names of the plaintiffs, respectively. It is alleged in these petitions, that the defendant, at the time of the accident, was engaged in running and operating the branch road already mentioned, between Russellville and Jefferson City; that the deceased husbands of plaintiffs were passengers on the defendant's train of cars; that, being passengers, they were so injured that they died; that "said injury and death resulted from and was occasioned by the carelessness and negligence of defendant, its agents and servants, in running and operating its engine and train of cars on which said deceased was a passenger, in this, to wit, that said agents and servants did negligently, improperly, carelessly, and recklessly operate and run said train, with its tender and engine reversed, and over a newly-constructed roadbed, at a highly improper, too great, and dangerous rate of speed, and did otherwise so carelessly and negligently run and manage said train that part thereof was thrown from the track, and said train was wrecked; in consequence of which negligence, carelessness, and improper conduct of defendant, its servants and agents," said deceased were on said December 18, 1881, injured, and from said injury died. The answers are alike in all cases, and consist of a general denial, coupled with a circumstantial statement of matters in defense, in denial, and by way of contributory negligence imputed to the deceased. It is alleged, in substance, that on the day of the accident, the train, as it started from Jefferson City, was a construction or work train, composed of a locomotive, tender, and one box car loaded with iron; that the train was taken out for the purpose solely of carrying railroad iron to Russellville, a place about 20 miles distant, and the train, as thus made up, was not intended for nor allowed to carry passengers or other persons than the trainmen in charge thereof, as the deceased well knew; that when the train was about to leave Jefferson City the deceased voluntarily, wrongfully, and recklessly, without the knowledge or consent of the conductor and the other men in charge of the train, got into said box car, for the purpose of being carried to Russellville, well knowing that said work train was not allowed nor intended to carry passengers; that the deceased well knew the existing condition of the road, and that there was no turntable at Russellville, and that the train would have to run back to Jefferson City with the engine and tender reversed; that the deceased well knew that riding on a flat or open car was more dangerous than riding in a box car; that the deceased well knew that neither the conductor nor any other person connected with the train had any authority to carry passengers or any other persons than those employed in managing the train; that the deceased, without the knowledge or...
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