Chaney v. Louisiana & Missouri R. R. Co.

• Decision Date: 20 June 1903
• Citation: 75 S.W. 595,176 Mo. 598
• Court: Missouri Supreme Court
• Parties: CHANEY v. LOUISIANA & MISSOURI R. R. CO.<SMALL><SUP>*</SUP></SMALL>

75 S.W. 595

176 Mo. 598

CHANEY v. LOUISIANA & MISSOURI R. R. CO.^*

Supreme Court of Missouri, Division No. 1.

June 20, 1903.

MASTER AND SERVANT—RAILROAD EMPLOYÉ —WHAT CONSTITUTES — CARRIER — PASSENGER —CROWDED CAR—ASSUMING DANGEROUS POSITION—INJURY — CONTRIBUTORY NEGLIGENCE —ABSENCE OF PLEA.

1. One who is acquainted with the conductor and brakeman on a mixed train, and for several years has ridden once a week thereon without paying fare, but rendering assistance in handling baggage and unloading cars, etc., is not an employé of the railroad company.

2. Neither on general principles, nor under Rev. St. 1899, § 1080, providing that if a railroad passenger shall be injured while on the platform, or in any baggage, wood, or freight car, in violation of printed regulations posted inside of the passenger cars, the company shall not be liable if at the time it furnished room inside its passenger cars sufficient for passengers, is a passenger justified in taking a position, on account of the crowded condition of the passenger car, on the top of a freight car, holding on to a brake with his legs dangling over the end of the car.

3. Though in an action by a passenger for injuries there is no plea of contributory negligence, yet where it clearly appears from plaintiff's own evidence that he was guilty of negligence directly contributing to his injury, it is proper to take the case from the jury by an instruction in the nature of a demurrer to the evidence.

Appeal from Circuit Court, Audrain County; E. M. Hughes, Judge.

Action by John Chaney against the Louisiana & Missouri River Railroad Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Geo. Robertson, for appellant. F. Houston, for respondent.

VALLIANT, J.

Plaintiff sues to recover damages for personal injuries sustained by him in an accident on a railroad owned by the defendant corporation, but leased to and operated by the Chicago & Alton Railroad Company. The accident is alleged to have resulted from a defective condition of the road and the negligent running of the train. The petition is in two counts. In the first count plaintiff declares that he was an employé of the Chicago & Alton Company, engaged in operating the train, and in the second that he was a passenger.

The plaintiff's evidence tended to show as follows: The defendant is a Missouri corporation owning a railroad extending from Louisiana, Mo., south to the Missouri river, which road is leased to and operated by the Chicago & Alton Railroad Company. Plaintiff lived near Auxvasse, which is a station on this road a few miles from Mexico, Mo. A local train composed of freight cars and a caboose, in which passengers were usually carried, ran regularly on that part of the road. The plaintiff was familiar with this train, was well acquainted with the conductor and brakeman, and made frequent trips on it from Auxvasse to Mexico and return. He was not in the habit of paying fare, and did not expect to do so. The conductor never asked him for fare, but frequently would ask him to assist in handling the baggage and unloading cars, and he always assisted in whatever he was asked to do. He frequently rode on the top of the cars, and helped with the brakes when requested. He had been going to and for on this train, on these conditions, once a week for several years. On the day of the accident the plaintiff boarded the train at Auxvasse, aiming to go to Mexico; he got on the front platform of the caboose; the conductor at that time was on the rear platform, giving the signal to the engineer to start; plaintiff at that time was in the line of the conductor's vision; whether he was seen by the conductor or not he did not know. When the train pulled out from Auxvasse, the plaintiff, standing on the front platform, looked into the caboose and saw that all the seats were occupied, four or five men were standing in the aisles, and thereupon he climbed upon top of the freight car next in front, and walked on along to the front over about six cars and sat down on the top of a freight car. The two brakemen saw him. When the train stopped at the next station, he got down on the ground. While the train was standing there one of the brakemen asked him to go up and let off a brake; he went up on top of the car for this purpose; it was the third or fourth car from the caboose; he let off the brake as requested, and then sat down on top of the car at one end, facing to the rear, with his legs hanging down between two cars, holding to a brake. He was in that position when three of the cars in...