Bolton v. Missouri Pacific Railway Company

• Decision Date: 18 February 1903
• Citation: 72 S.W. 530,172 Mo. 92
• Parties: BOLTON v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

72 S.W. 530

172 Mo. 92

BOLTON v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant

Supreme Court of Missouri, First Division

February 18, 1903

Appeal from Morgan Circuit Court. -- Hon. Jno. M. Williams, Special Judge.

Affirmed.

M. L Clardy and Wm. S. Shirk for appellant.

(1) It was error for the court below to strike out part of defendant's answer on the ground that the part moved to be stricken out constituted no defense to plaintiff's action, and that if the allegations contained in it were true, "they would be against policy," and because the contract therein pleaded was not filed with the answer. The part of the answer moved to be stricken out set up as a defense that provision of the contract under which plaintiff was being carried, which obligated him to ride in the caboose car attached to the train in which his live stock was being transported, while the train was in motion, and which further stipulated that when he left the caboose car to look after his stock he should do so at his own risk of injury. A carrier has the undoubted right either by rule, regulation or contract to prescribe where a passenger shall ride, and to prohibit him from riding in dangerous places. Indeed, in the absence of rule, regulation, or contract, it is negligence on the part of the passenger to voluntarily assume a dangerous position. Aufdenberg v. Railroad, 132 Mo. 565; Hutchinson on Carriers (2 Ed.), secs. 581, 665; Railroad v. Miles, 40 Ark. 298; Files v. Railroad, 149 Mass. 204; Jackson v. Crilly, 16 Colo. 103. The motion could not have been sustained on the ground that its allegations, if true, "would be against public policy." If this contention has any meaning at all, its profundity is too deep for ordinary comprehension. And it was not necessary to file the contract pleaded with the answer. Bowling v. Hax, 55 Mo. 446; Railroad v Atkison, 17 Mo.App. 484. (2) Defendant offered no evidence in the case. At the close of plaintiff's case defendant offered an instruction in the nature of a demurrer to plaintiff's evidence. This the court refused to give to the jury. It was error to refuse to sustain this demurrer for several reasons: (a) The contract of shipment which constituted plaintiff's socalled "drovers pass" contained an express stipulation that plaintiff should not ride in the car with his stock; that is, it provided that he should remain in the caboose whilst the train was in motion. Plaintiff admits that he had ample opportunity to read the contract before he signed it, and before he left Versailles. This contract was more binding on the plaintiff than any mere rules or regulations of defendant would have been, or any directions which the conductor might have given him. It was a command on the part of the company as to where he should ride, and a binding agreement on his part to ride there. The statute alone should settle this question. R. S. 1899, secs 1080, 1097; Railroad v. Sparks, 55 Kans. 288; s. c., 39 P. 1032; Sherman v. Railroad, 72 Mo. 62; Player v. Railroad, 62 Iowa 723; s. c., 16 N.W. 347; Humphries v. Railroad, 8 S.D. 103; s. c. 65 N.W. 466; Carroll v. Railroad, 107 Mo. 653; Martensen v. Railroad, 15 N.W. 570; Goldstein v. Railroad, 21 Am. Ry. Rep. 391; Railroad v. Miles, 13 Am. and Eng. R. R. Cas. 10; Thompson on Carr., 265. Nor does the fact that the conductor saw him riding in the car from Versailles to Tipton or that the conductor saw him in the car at Tipton while it was being put into the westbound freight train, without making any objection to his riding there, relieve the defendant from his obligation and duty to ride in the caboose. Sherman v. Railroad, 72 Mo. 62; Ashbrooke v. Railroad, 18 Mo.App. 290; Railroad v. Jones, 96 U.S. 439; Hutchinson on Carriers (2 Ed.), sec. 665; 2 Wood, Railroads, secs. 303, 304; Higgins v. Railroad, 36 Mo. 418; Tuley v. Railroad, 41 Mo.App. 432; Railroad v. Langdon, 1 Am. and Eng. R. R. Cas. 87; Elliott on Railroads, sec. 1631. (b) To be in the car with his stock, especially at Tipton where he knew his car was to be switched into the westbound train, and where he was bound to know that cars are usually jammed and jolted, was a reckless and negligent act on the part of defendant. It was a place of obvious danger. He was not there to look after his stock, but to ride in the car on his way to his destination. This was such contributory negligence as bars him from a recovery; hence, the demurrer should have been sustained. Harris v. Railroad, 89 Mo. 233. (c) He was not injured by the first jolt, and would not have been injured if he had not gone in among his cattle, voluntarily and unnecessarily to get them up. It was while among them that the car was jolted a second time and his cow fell upon his leg and broke it. None of his stock was injured and he would not have been injured, even in the car where he proposed to ride, if he had not gone in among his cattle, a dangerous thing to do, whilst the train was being made up. Harris v. Railroad, supra. (d) It is clear from all the evidence, that if the plaintiff had been in the caboose, where his contract required him to be, he would not have been injured. He voluntarily and in violation of his contract selected a dangerous place to ride. Under such circumstances, he can not recover, and the demurrer should have been sustained. Wilmot v. Railroad, 106 Mo. 535; Seymour v. Railroad, 114 Mo. 266; Aufdenberg v. Railroad, 132 Mo. 535; Harris v. Railroad, supra. (e) Under no circumstances can plaintiff be justified or excused for violating the terms of the stock contract constituting his "drovers pass." He himself introduced it in evidence in his own behalf. He is therefore bound by it, the same as he is by any other evidence introduced by him, and can not escape full compliance with it. He was injured because of his failure to comply with it -- hence he can not recover in this case, and the demurrer should have been sustained.

D. E. Wray and John D. Bohling for respondent.

(1) The court did not err in striking out that portion of defendant's answer (that was stricken out) for the reason that the allegations therein constituted no defense to plaintiff's action; said part of the answer, so stricken out, set up a contract by which it is attempted by the defendant to limit its liability as a common carrier for injuries to a passenger for the negligence of its servants, agents and employees. Jones v. Railroad, 125 Mo. 666; Magoffin v. Railroad, 102 Mo. 540; Miller v. Railroad, 105 Mo. 455; Voight v. Railroad, 79 F. 561; Railroad v. Lockwood, 17 Wall. 359; Starr v. Railroad, 67 Minn. 18. (2) If the trial court did err in striking out said part of defendant's answer, appellant waived said objection for the following reasons: (a) Appellant failed to object and except to the action of the court on said motion, as is shown by the certified copy of the record of the circuit court of Morgan county. (b) After the order sustaining the motion to strike out had been made by the trial court, the appellant participated in the trial and asked instructions embodying its theory of defense and thereby waived any error committed by the trial court in sustaining said motion. (c) No exception to the action of the trial court on said motion is preserved, nor is any exception taken to the action of the court in sustaining said motion, either in the motion in arrest, or in the motion for a new trial. The case was tried on the issues made by the general denial and answer setting up contributory negligence, and the only errors assigned on the trial of that issue are before this court for review. Acock v. Acock, 57 Mo. 154; Curtis v. Curtis, 54 Mo. 351; Lyon v. LaMaster, 103 Mo. 612; State ex rel. v. Burkhartt, 83 Mo. 430; Ballinger v. Carrier, 79 Mo. 318; Bank v. Allen, 68 Mo. 474; State v. Gilmore, 110 Mo. 1; Railroad v. Carlisle, 96 Mo. 166; Williams v. Railroad, 112 Mo. 166; Smith v. Kansas City, 128 Mo. 23. (d) The defendant lost nothing by the action of the trial court in striking out part of its answer. The contract was introduced in evidence by plaintiff, and defendant was permitted to cross-examine the plaintiff upon the contract at great length.

OPINION

VALLIANT, J.

Action for personal injuries received by the plaintiff, while in a car on defendant's railroad, through what is alleged to have been the negligence of defendant's servants in charge.

The petition states in effect that on June 29, 1898, in pursuance to a contract which plaintiff, for himself and his mother, made with the defendant, the latter furnished him a freight car in which to transport certain furniture and live stock, and also himself as a passenger from Versailles, Missouri, to Trinidad, Colorado; that while he was in the car, with the furniture and live stock, for that purpose, after having been carried thereon from Versailles to Tipton, Missouri, and while on a side track at Tipton, the servants of defendant, in switching cars, negligently and recklessly ran a train into and against the car in which plaintiff was, with such force and shock as to throw plaintiff down on the floor and to throw one of the live stock, to-wit, a cow, on the plaintiff, and thereby break and lacerate his leg.

The answer of the defendant is a general denial and a general averment, without specification, that the plaintiff's injuries were the result of his own negligence, and then a specific denial of the contract pleaded in the petition. Then the answer goes on to aver in effect that the only contract the defendant ever made in relation to the shipment in question was with the plaintiff's mother and that was that the plaintiff was entitled to ride free of charge on the freight train on which the furniture and live stock were to be carried, and that he should remain in the caboose attached to the train while the same...