Dean v. Kansas City, St. Louis & Chicago Railroad Co.

• Decision Date: 21 November 1906
• Citation: 97 S.W. 910,199 Mo. 386
• Parties: DEAN v. KANSAS CITY, ST. LOUIS & CHICAGO RAILROAD COMPANY, Appellant
• Court: Missouri Supreme Court

97 S.W. 910

199 Mo. 386

DEAN v. KANSAS CITY, ST. LOUIS & CHICAGO RAILROAD COMPANY, Appellant

Supreme Court of Missouri, Division One

November 21, 1906

Appeal from Lafayette Circuit Court. -- Hon Samuel Davis, Judge.

Affirmed.

Richard Field and Scarritt, Scarritt & Jones for appellant.

John Welborn and Charles Lyons for respondent.

OPINION

LAMM, J.

The defendant is a domestic corporation and owns the right of way, roadbed and track of a railroad running from Mexico Missouri, through Lafayette county to Kansas City. The Chicago & Alton Railroad Company is an Illinois corporation, and in 1872 took over defendant's said property under a lease, said to be for 1,000 years. Later another foreign corporation, the Chicago & Alton Railway Company, became sub-lessee under a term of 99 years, and on the 19th day of February, 1902, was running and operating its trains on said railroad through its own servants. Plaintiff was a section hand on said line in the employ of said sub-lessee. On said date about one mile and a half west of Bates City, a station on said line, one of its passenger trains, running at great speed, approached the place plaintiff was at work. Plaintiff stepped fifteen feet to one side to allow said train to go by and while awaiting its passage was struck on the left knee by a piece of coal hurled from the tender of the locomotive and seriously injured. He sued the Kansas City, St. Louis and Chicago Railroad Company for damages sounding in tort, recovered $ 5,000, and the company appeals.

I. The liability of defendant, lessor, for the negligence of its sub-lessee, the Chicago & Alton Railway Company, is based upon section 1060, Revised Statutes 1899, providing, among other things, that "a corporation in this State leasing its road to a corporation of another State, or licensing or permitting a corporation of another State, under any running arrangements, to run engines and cars upon its road in this State, shall remain liable as if it operated the road itself," etc.

Due steps were taken by answer and instructions (offered but refused) to present and preserve a constitutional question to-wit, that said statute "is unconstitutional and void, and assumes to give plaintiff a cause of action against defendant without due process of law . . . . and in that it attempts to impose on defendant the obligation of another, without defendant's consent, and thereby violates sections 4, 10, 15, and 30 of article 2, and section 53 of article 4 of the Constitution of Missouri, and the Fourteenth Amendment of the Constitution of the United States."

The statute thus assailed has long been in force. [Laws 1870, p. 90]. It proceeds on the theory that the franchises and powers of a railroad company are in a large measure designed to be exercised for the public good and this exercise of them is the consideration for granting them and that a contract by which such railroad company renders itself incapable of performing its duty to the public, or attempts to absolve itself from its obligation, without the consent of the State, violates its charter and is forbidden by public policy, and hence is void. [Thomas v. Railroad, 101 U.S. 71, 25 L.Ed. 950.] The right to lease, arising only by consent of the Legislature, is subject to legislative terms imposed. [Smith v. Railroad, 61 Mo. 1; State ex rel. v. Railroad, 89 Mo. 523 at 534-5; Markey v. Railroad, 185 Mo. 348.] The statute in question, prescribing the terms upon which a railroad lease may exist, having been held valid in Markey v. Railroad, supra, a case in which the opinion was handed down in December, 1904, after the trial, nisi, in the case at bar, appellant, as we understand the submission here, has abandoned its constitutional point and does not seek to disturb or reagitate our settled construction of that statute, but if not abandoned, it must be overruled.

II. The answer pleaded the contributory negligence of plaintiff. The only theory upon which plaintiff's negligence could be urged is that he remained too close to the passing train. The evidence shows he went farther away than section men usually go to let trains go by. The issue of contributory negligence was submitted to the jury and the jury found plaintiff was exercising due care. We do not gather from the briefs of appellant's learned counsel that they now assert any error in that submission or that the verdict is subject to legal criticism on that score. Hence we put that matter away from us.

III. Plaintiff's instructions are made a target for shafts of criticism, and prejudicial error is assigned in the giving of them; therefore it may be as well to set forth the instructions on both sides and let them speak for themselves.

For plaintiff, the following instructions were allowed:

1. "The court instructs the jury that if you believe from the evidence that on or about the 19th day of February, 1902, the plaintiff was in the employ and service of the Chicago & Alton Railway Company, as a common laborer, and was on that date engaged in repairing the track of the defendant's road at a point on said road, about one and one-half miles west of Bates City, Lafayette county, Missouri, and that the Chicago & Alton Railway Company, its agents and servants running and operating its cars and trains along and over said road at said point, knew or by the exercise of ordinary care could have known, that the plaintiff was so engaged, and the plaintiff while in the exercise of ordinary care on his part, was injured by a lump of coal, thrown and hurled from a passing train managed, operated and controlled by the Chicago & Alton Railway Company, its agents and servants, and that the Chicago & Alton Railway Company, its agents and servants, negligently and carelessly had piled, placed, heaped and permitted lumps and quantities of coal to be and remain in unsafe, insecure, defective and dangerous places, positions and receptacles in and about its said engine and train of cars, if you find and believe from the evidence that such places, positions, receptacles were unsafe, insecure, defective and dangerous, and negligently and carelessly ran and operated its said engine and train of cars at a high and excessive rate of speed, if you find and believe from the evidence that the rate of speed, under the circumstances, was high and excessive, along, upon and over a rough, uneven track, if you believe from the evidence that said track at said point was rough, uneven, and shall further believe from the evidence that such acts and conduct were, under the circumstances, careless and negligent, and shall further find and believe from the evidence that the Chicago & Alton Railway Company, its agents and servants in charge of said train, knew or by the exercise of ordinary care, could have known that the plaintiff, by reason and in consequence of such acts and conduct, was likely to suffer harm and injury, and that by reason and in consequence of such acts and conduct the lump of coal aforesaid was thrown and hurled from the passing engine and train aforesaid, and that plaintiff by reason and in consequence thereof, was injured as aforesaid, and shall further find from the evidence that his injury, under the facts and circumstances, was not a risk which he assumed when he entered the service and employment of the said Chicago & Alton Railway Company, then your verdict should be for the plaintiff in this case."

2. "The court instructs the jury that while a servant in accepting employment assumes all the ordinary risks and hazards incident to it, and which are a part of the natural and ordinary method of conducting the business, and all the risks and hazards of which he knew, or by the exercise of ordinary care, could have known, he does not assume those, if there are any such, arising from the negligence of the master of which he knew nothing, or of which he could have known by the exercise of ordinary care on his part."

3. "If the jury finds for the plaintiff, they will assess his damages, if any, at such sums as they believe from the evidence will reasonably compensate him for his injuries sustained, if any, as shown by the evidence, and, in estimating such damages, if any, the jury will take into consideration the physical injury, if any, whether temporary or permanent, as shown by the evidence, the bodily pain or mental anguish, if any, suffered and endured, and which plaintiff may hereafter suffer and endure, if any, as shown by the evidence, on account of his said injuries, any sum or sums of money, if any, as shown by the evidence, the plaintiff has paid, or become liable to pay for medicine and medical attention, on account of his said injuries, any sum or sums of money, if any, as shown by the evidence, the plaintiff has lost in earnings on account of his said injuries, and the losses, if any, as shown by the evidence, in future earnings, as you may reasonably believe will result to plaintiff on account of his said injuries, not to exceed in all the sum of twenty-five thousand dollars."

For defendant, the following instructions were allowed:

1. "If the jury believe from the evidence that the injuries sustained by the plaintiff were merely the result of accident, then your verdict must be for the defendant."

2. "The court instructs the jury that this case should be considered by them the same as if it were a controversy between two persons of equal standing in the community. The fact that one of the parties is a corporation should not influence your mind in any way, but the right of the parties should and must be determined upon the evidence introduced in the case and the instructions given to the jury, which is the law and only law to guide you in your deliberations. Those instructions, although read to you by the lawyers, are...