Berry v. Missouri Pacific Railway Company

Decision Date05 February 1894
Citation25 S.W. 229,124 Mo. 223
PartiesBerry v. The Missouri Pacific Railway Company, Appellant. [*] Wagner v. The Missouri Pacific Railway Company, Appellant. * Zuendt v. The Missouri Pacific Railway Company, Appellant. *
CourtMissouri Supreme Court

Appeal from Osage Circuit Court. -- Hon. Rudolph Hirzel, Judge.

The following are the instructions given and refused in the case of Berry v. Railroad, as called for in the opinion of Judge Sherwood, infra.

Given at plaintiff's request:

"1. The court instructs the jury that if George Vaughan, as defendant's conductor, was master of the train on which the accident resulting in the alleged death of Green C. Berry occurred and said deceased was on said train at the time of the accident, with the knowlege and consent of said conductor, for the purpose of transportation from Russellville to Jefferson City, then defendant's servants in charge of said train were bound to exercise towards the deceased the care of ordinarily prudent persons in running and managing said train; and, therefore, if the jury find and believe from the evidence, that defendant's servants and agents in charge of said train failed to exercise said care but did negligently and carelessly run and manage said train with engine and tender reversed at an excessive and dangerous rate of speed, and that by reason of such carelessness and negligence the train or a part thereof was wrecked and thrown from the track, thereby directly causing the death of plaintiff's husband, then the jury will find the issues for the plaintiff and assess her damages at $ 5,000.

"2. If the deceased was on the train of the defendant at the time of the alleged accident with the knowledge and consent of the conductor as the master thereof for the purpose of transportation, then he was a passenger thereon, and this is true whether he paid fare or not; and the fact that said train was a construction or work train did not relieve the defendant of the duty towards deceased of exercising ordinary care in running and managing said train, provided the deceased was on the same with the knowledge and consent of the master thereof for the purpose of transportation.

"3. Ordinary care is such care as an ordinarily prudent person usually exercises in the same situation and under the same circumstances as to the business in hand.

"4. Although the deceased may have been guilty of contributory negligence in riding on the flat car next to the locomotive still such negligence on his part will not defeat plaintiff's recovery if defendant's servants in charge of the train knew of the exposed position of the deceased and thereafter failed to manage the train with the care and prudence of ordinarily prudent persons and in consequence of such failure on their part, after knowledge of deceased's position, the accident occurred thereby directly causing the death of plaintiff's husband, as charged by the plaintiff.

"5. When the rules of a railroad company forbid carrying passengers on its freight or construction trains, but if the conductor has the train in charge and relaxes the rule and permits passengers to be carried, the railroad, in the absence of notice to such passengers of such want of authority, or in the absence of collusion between them and the conductor to defraud the company of its fare, owes such passengers the duty of ordinary care in running and managing said train, and in taking the freight or construction train they accept and travel on it, acquiescing in the usual incidents and conduct of a freight or construction train managed by ordinarily competent and prudent men."

Given of the court's own motion:

"1. If you believe from the evidence that Green C. Berry, late husband of the plaintiff herein, boarded a work or construction train of defendant, at the city of Jefferson, on the eighteenth day of December, 1881, against the permission and consent of the conductor of said train, and that said Berry remained and rode on said train without paying any fare to Russellville and return, and on his way back was killed on said train; and you also beleive from the evidence that the conductor or master of said train under the rules of the railroad company was not permitted to carry passengers on said train, and said Berry knew of said rules, but persisted in boarding said train and you further believe that the conductor of said train ordered said Berry and others to get off and leave said work train and that he refused so to do, then said Green C. Berry was not, in law, a passenger on said train and that plaintiff, under the pleadings and the evidence in this case, is not entitled to recover.

"2. If the jury believe from the evidence that Green C. Berry, the late husband of plaintiff, on his return from Russellville to Jefferson City, on the work or construction train of defendant, voluntarily, willfully and wrongfully, and against the protest and command of the conductor of said train, did get upon and ride on a flat car which had been attached to the front part of the locomotive, and that the riding on said flat car was then and there dangerous and that said Berry either knew or had been warned of said danger, but refused to take another car, and you further believe that said action of said Berry in riding on said car directly contributed to his death, and that said killing of said Berry was the direct result of his, the said Berry's, own acts, then the plaintiff can not recover and you will find for defendant."

Given at defendant's request:

"1. The court instructs the jury that railroad companies do not owe to those unlawfully on its trains the same duty it owes to its passengers, and that they are required to exercise only such care towards them, as they ordinarily exercise in running and managing such trains.

"2. The court instructs the jury that one who travels over a newly constructed railroad, knowing it to be such, voluntarily assumes all risks incident to such travel arising from the recent construction of the road.

"3. The court instructs the jury that, under the facts disclosed by the evidence in this case, the defendant was only required to exercise ordinary care toward the deceased in the operation of the work train in question."

Defendant's instructions refused:

"1. The court instructs the jury that, under the law and the facts as disclosed by the evidence in this case, the plaintiff's deceased husband, Green C. Berry, had no right to ride on the work train on which he was injured and killed, and that having been notified and warned by the agents and servants of defendant not to do so, and also requested by them to get off of said train, and having refused to obey such monition, notice and request, but persisted in getting upon and riding on said train, he thereby voluntarily assumed all such risks of danger and injury as were incident to the usual mode and manner of running and managing said work train over said railroad at said time.

"2. The court instructs the jury that under all the facts and circumstances disclosed by the evidence in this case that the conductor of the work train on which plaintiff's deceased husband forced himself to be carried from Jefferson City to Russellville, and back to Jefferson City over said railroad on said Sunday, was not a vice-principal as to said deceased, and his failure to forcibly eject the said deceased from the train can not be considered as the permission of his principal to let said deceased ride on said work train.

"3. The court instructs the jury that the fact that if the said deceased had been riding in the said box car on said work train at the time the accident in which he was injured occurred, he would not have been hurt, coupled with the further fact as shown by the undisputed evidence in this case that he was on the said flat car at said time in disregard of the monition of the danger given him by the conductor of said train, and in disregard of the request of said conductor not to ride on said flat car, constituted such negligence on the part of said deceased as to prevent a recovery by plaintiff in this action.

"4. The court instructs the jury that, although by making some of its freight trains lawful passenger trains, the road did so far as the public is concerned apparently give the conductors of all its freight trains authority to carry passengers on their trains, yet, such acts and apparent authority does not extend to work trains, and the jury are instructed that the fact that regular freight trains run over the railroad in question here on all days except Sundays were made lawful passenger trains, did not even apparently give the conductor of the work train in question in this case, and which was run over said railroad on said Sunday, authority to carry passengers thereon.

"5. The court instructs the jury that, the undisputed evidence in this case shows that plaintiff's said deceased husband was well acquainted with the railroad in question here between Jefferson City and Russellville; that he knew it was a newly constructed railroad and that there was no turntable at Russellville and that the engine and tender had to be run backwards over said newly constructed railroad all the way from Russellville to Jefferson City; that he also knew that a flat car without a side plank or other thing to prevent him from falling off said flat car was not as safe a place to ride on said train as in a box car, and that it would not be as safe a place to ride in a box car on general principles that knowing all these things, he voluntarily and willfully got upon said flat car and persisted in remaining thereon, against the notice and monition of the conductor that the box car was a better and safer place to ride and thereby he voluntarily took upon himself the risks of all the...

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3 cases
  • Baker v. Metropolitan Street Railway Company
    • United States
    • Kansas Court of Appeals
    • March 7, 1910
    ...18 Mo. 362; Perkins v. Railroad, 55 Mo. 201; 1 Shearman & Redfield, Negligence, sec. 148; Malacek v. Railroad, 55 Mo. 201; Berry v. Railroad, 124 Mo. 223; Eckhard v. Railroad, 190 Mo. 593. (2) The having proved a prima-facie case, the trial court cannot, as a matter of law, say that it was ......
  • Gibler v. Terminal Railroad Association of St. Louis
    • United States
    • Missouri Supreme Court
    • April 2, 1907
    ... ... LOUIS, Appellant Supreme Court of Missouri, Second Division April 2, 1907 ...           ... He is not like a stage-owner or a railroad ... company. In these cases the passenger surrenders himself to ... and was, therefore, properly submitted to the jury ( Berry ... v. Railroad, 124 Mo. 223, 25 S.W. 229; [203 Mo. 220] ... ...
  • Pim v. St. Louis Transit Company
    • United States
    • Missouri Court of Appeals
    • December 13, 1904
    ... ... ST. LOUIS TRANSIT COMPANY, Appellant Court of Appeals of Missouri, St. LouisDecember 13, 1904 ...           Appeal ... from St ... 143; Buesching v. Gas Light ... Co., 73 Mo. 219; Hudson v. Railway, 101 Mo. 13, ... 14 S.W. 15; Chaney v. Railway, 176 Mo. 598, 75 S.W ... 290; Carroll v. Rapid Transit Co., 107 ... Mo. 653, 17 S.W. 889; Berry v. Railway, 124 Mo. 221, ... 25 S.W. 229; Carrier v. Railway, 175 Mo ... ...

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