Carroll v. Missouri Pacific Ry. Co.

• Decision Date: 31 October 1885
• Citation: 88 Mo. 239
• Parties: CARROLL v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

88 Mo. 239

CARROLL

v.MISSOURI PACIFIC RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1885.

Appeal from Cooper Circuit Court.--Trial before HON. J. P. STROTHER, Judge of the Sixth Judicial Circuit.

AFFIRMED.

T. J. Portis for appellant.

(1) The court erred in striking out the special defences set up in defendant's amended answer. The special contract pleaded was a valid defence. Daer v.New York, etc., 1 Kern. 485; Wells v. Railroad, 24 N. Y. 181; Perkins v. Sorne, 24 N. Y. 196; Bigsell v. Railroad, 25 N. Y. 442. No principle is better settled than that a party to whom any benefit is secured by contract, by statute, or even by the constitution, may waive such benefit, and that the public are not interested in protecting or benefiting him against his wishes. Broom's Legal Maxims, 309; Lee v. Tillotson, 24 Wend. 337; People v. Murray, 5 Hill, 468; Donnelly v. Corbitt, 3 Selden, 500; Hill v. Railroad, 29 Am. Rep. 163, note; Duff v. Railroad, 41 L. J. (N. S.) 197; Kinney v. Railroad, 34 N. J. L. 513. (2) The court erred in striking out the first paragraph of the answer, for it averred that by virtue of the terms of said contract Carroll made himself an employe of defendant and a fellow servant of its employes. (3) The statute on which this action is brought is unconstitutional. Const. U. S. 14th Amend., sec. 1; Const. U. S., art. 7; Const. of Mo., art. 2, sec. 30. (4) The instruction for plaintiff was erroneous, because it does not require the jury to find that deceased was a passenger on defendant's train.

L. F. Wood and Draffen & Williams for respondent.

(1) The special contract set up in the answer constituted no defence to defendant's own negligence. Railroad v. Lockwood, 17 Wall. 357; Railroad v. Selby, 47 Ind. 471; s. c., 17 Am. Rep., 719; Railroad v. Henderson,51 Pa. St. 315; Railroad v. Stephens, 95 U. S. 655; Lemon v. Chanslor, 68 Mo. 340. (2) The court did not err in striking out that part of the answer which alleged that the deceased had made himself an employe of defendant, and a fellow servant of defendant's employes. Flinn v. Railroad, 1 Houston, 469; Lackawanna, etc., Ry. v. Chenowith,52 Pa. St. 382; Dritt v. Snodgrass, 66 Mo. 286; Curran v. Downs, 3 Mo. App. 468; State, etc., v. Williams, 77 Mo. 463. (3) The second section of the damage act is constitutional. Cooley's Const. Lim. 581, and note 2; Barnett v. Railroad, 68 Mo. 56; Field on Damages, 12. (4) There was no error in plaintiff's instruction. Sherman v. Railroad, 72 Mo. 62; Lemon v. Chanslor, 68 Mo. 340. It was not necessary to tell the jury in express terms that deceased was a passenger, there was no pretense he was an employe. When it is clear and undisputed, an instruction may assume the truth of the matter sworn to. Barr v. Armstrong, 56 Mo. 577; Caldwell v. Stephens, 57 Mo. 589 (5) There is nothing in the defence that plaintiff had collected two thousand seven hundred dollars insurance money. May on Insurance, sec. 455.

RAY, J.

This is an action by Sarah J. Carroll, as the widow of Hugh A. Carroll, deceased, for the death of her said husband, occasioned by the negligence of defendant and its servants in the management of its trains. The petition in substance, and as far as we now deem material to notice, alleged that on the thirty-first of May, 1881, said Hugh A. Carroll, under the rules and regulations of defendant, and in compliance with defendant's terms, shipped one car load of stock on one of defendant's freight trains from California to St. Louis, and took passage himself on the same train, in compliance with the rules and regulations of defendant; that on the morning of the thirty-first of May, 1881, said train on which Carroll and his stock were being carried, reached the town of Washington, in Franklin county, Missouri, on its way to St. Louis; that said Carroll continued thereon as a passenger, in accordance with his contract with defendant, as aforesaid; that at the town of Washington, in Franklin county, Missouri, by reason of the carelessness, negligence, unskillfulness, and mismanagement of defendant's agents, officers and employes, whilst running, conducting and managing said locomotive and train of cars, on which said Carroll had taken passage as aforesaid, and, also, by reason of the carelessness, negligence, unskillfulness and mismanagement of defendant's officers, servants, agents and employes, whilst running, conducting and managing another locomotive and train of cars, at the time and place last aforesaid, the said two trains collided, and by reason of said carelessness, negligence, unskillfulness and mismanagement of the defendant's officers, servants, agents and employes, whilst managing said locomotives and trains as aforesaind, said Hugh A. Carroll was instantly killed in said collision, and that by reason thereof plaintiff was entitled to recover the sum of five thousand dollars damages, and for which she asked judgment.

The amended answer of the defendant, after denying generally all of the allegations of the petition, not afterwards expressly admitted in said answer, set up three special defences: “First. That said Carroll on the thirtieth of May, 1881, under a written contract with defendant, shipped one car load of horses over defendant's road from California to St. Louis, and took passage himself, on the train that carried said stock, under and by virtue of the terms of said written contract; that by said contract he was to be carried upon said train for the purpose of taking care of his said stock, and was to be at his own risk of any personal injury from any cause whatever, and that he was required to sign a release to that effect, which he did; that he signed this release as a condition precedent to his right to ride upon said train, and that by reason of his traveling upon said contract to assist in taking care of said stock, he became an employe of the defendant, and to that extent a fellow servant of the men in charge of defendant's trains. Second. The second special defence was that the section of the damage act, upon which this suit was predicated, was unconstitutional because the amount of the recovery was fixed at five thousand dollars. Third. That plaintiff's husband had his life insured for twenty-seven hundred dollars, payable to her, and which, after he was killed, she collected.” The court, on plaintiff's motion, struck out that portion of the answer containing the special defences above mentioned.

As we understand the record, there was no controversy at the trial as to the facts in the case. The husband of plaintiff was killed while riding on one of defendant's freight trains, upon a stock drover's pass, or contract, in charge of, or accompanying, a car load of horses which he had shipped on defendant's railroad. Under the rules of defendant, said Hugh A. Carroll became entitled to said drovers' pass or stock contract, in virtue of his said shipment of said car load of stock on said train, and defendant's conductors of such trains received and accepted such stock contracts as passes or tickets over the railroad. A collision occurred between said train upon which said Hugh A. Carroll was thus traveling, and another freight train of defendant, through the negligence of defendant and its servants in the management thereof, and the death of said Carroll resulted therefrom. The defendant offered no evidence, but demurred to that introduced by plaintiff, which demurrer to the evidence was overruled. No instructions were asked by defendant, and but one was given on the part of plaintiff, which was as follows:

“The jury are instructed that if they believe, from the evidence, that defendant's agents and servants whilst operating a train of cars on defendant's railroad, negligently and carelessly caused one of defendant's trains to collide with another train, upon which Hugh A. Carroll was riding, and that by reason of said collision, and as a consequence of such negligence, said Carroll was killed, and that the plaintiff is his widow, then the jury will find for plaintiff and assess her damages at the sum of five thousand dollars.”

There was a verdict and judgment for plaintiff for five thousand dollars, from which defendant has prosecuted this appeal.

The matters urged upon us by defendant for reversal of said judgment grow out of the action of the circuit court in striking out the special defences set up in the answer, and in giving said instruction set out as above. The first of said questions involves the validity of the special contract set out in the first of the special defences set up by the answer. This special contract, which was assented to and signed by the deceased husband, provided that: “For the purpose of taking care of the stock the owner, or men in charge, will be passed on the train with it, and all persons thus passed are at their own risk of any personal injury from any cause whatever, and must sign release to that effect endorsed on contract.” The endorsement required and referred to was as follows: “We, the undersigned owners, or in charge of the live stock mentioned in the within contract, in consideration of the free pass granted us by the Missouri Pacific Railroad Company, hereby agree that the Missouri Pacific Railway Company shall not be liable to us for any injury or damage of any kind suffered by us while in charge of said stock, or on our return passage.” The action of the wife, we may observe, was for the death of the husband, occasioned by the defendant's negligence, and the question is as to the validity of the agreement made by the husband exempting the defendant from injuries caused by its negligence, the collision of the trains as we must assume, after verdict being due thereto. The right of common carriers of goods and pussengers to thus contract against their own negligence, has repeatedly...