O'Donnell v. Kansas City, St. L. & C. R. Co.

• Decision Date: 19 June 1906
• Citation: 95 S.W. 196,197 Mo. 110
• Court: Missouri Supreme Court
• Parties: O'DONNELL v. KANSAS CITY, ST. L. & C. R. CO.

95 S.W. 196

197 Mo. 110

O'DONNELL v. KANSAS CITY, ST. L. & C. R. CO.

Supreme Court of Missouri, Division No. 1.

June 19, 1906.

1. COURTS — JURISDICTION — CONSTITUTIONALITY OF STATUTE.

Where a case involving the constitutionality of a statute has been decided by the Supreme Court, but is pending in the United States Supreme Court on a writ of error, the constitutionality of the statute is still an open question, so that the Supreme Court will take jurisdiction of an appeal in a subsequent case in which the constitutionality of the same statute is questioned.

2. CARRIERS—PASSENGERS — CONTRACT WITH FREIGHT BRAKEMAN.

A contract by a brakeman of a freight train to allow a person to ride on the train in consideration of his rendering assistance in the loading and unloading of freight was outside the scope of the brakeman's authority, not binding the railroad company, and the person so riding was a trespasser.

Appeal from Circuit Court, Jackson County; W. B. Teasdale, Judge.

Action by James O'Donnell against Kansas City, St. Louis & Chicago Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

Scarritt, Scarritt & Jones, for appellant. C. F. Mead and L. W. McCandless, for respondent.

VALLIANT, J.

Plaintiff recovered a judgment for $2,500 as damages for injuries sustained by him in a train wreck on defendant's road. The trains in the wreck belonged to the Chicago & Alton Railway Company, the lessee of the defendant's railroad. The appeal was taken by the defendant to this court because there is a constitutional question in the case; that is, the defendant, the lessor, contends that so much of section 1060, Rev. St. 1899, on which this suit is founded, as declares that the owner of a railroad in this state which leases its road to a corporation of another state "shall remain liable as if it operated the road itself," is in violation of certain sections of the Constitution of Missouri and the fourteenth amendment to the Constitution of the United States.

1. We have, in the case of Markey v. Railway Co., 185 Mo. 348, 84 S. W. 61, said all that we deem necessary to say on that question; but since, as we understand, that case is now pending before the Supreme Court of the United States on a writ of error, we will not now say that for the purpose of giving this court jurisdiction the constitutionality of that clause of that statute can no longer be drawn in question. We will therefore entertain jurisdiction of this appeal.

2. The case stated in the petition is substantially this: The railroad belongs to the defendant. It is leased and operated by the Chicage & Alton Railway Company. On June 6, 1902, the plaintiff was at Odessa, a station on the railroad, aiming to go to Kansas City. A Chicago & Alton freight train being there, the plaintiff asked a brakeman on the train the privilege of riding on it to Kansas City. The brakeman consented on condition that plaintiff would help unload freight along the route, to which terms plaintiff agreed. "Said arrangement was immediately called to the attention of the conductor of said train, and he, acting within the scope of his employment, expressly assented to it and permitted the plaintiff to ride upon said train until same was wrecked as hereinafter stated." The train on which the plaintiff entered under this agreement passed on to a station 7 miles west of Independence, where it stopped on the main track, and while standing there a regular passenger train going 50 or 60 miles an hour on the same track collided with it, with the consequence that plaintiff was thrown to the ground and severely injured. It was a rule of the Chicago & Alton Railway Company that freight trains were to keep out of the way of passenger trains with 10 minutes or more time space, and also that, when any train stopped between stations, one of the crew should go back half a mile or a mile with flag or lantern and place torpedoes on the track to warn an approaching train, and that was not done in this case. This freight train was 4 or 5 hours late, and was running on the time of the passenger train, which it had no right to do. The men in charge of this freight train knew that the passenger train was due then and there, and they had had opportunities to sidetrack their train and get it out of the way, but neglected to do so, and after the train stopped on the main track, as it did, they neglected to send back a flagman, or to place torpedoes on the track, "so that, when said passenger train approached around a curve, the employés operating it had not sufficient notice of the presence of the freight train to stop and prevent the collision, but same became inevitable and unavoidable." The answer was a general denial, and a plea that plaintiff was a trespasser on the train concealed from view of the train men; that defendant was not liable for the acts of the Chicago & Alton Railway Company; and that plaintiff for a valuable consideration had executed a release of all claim for damages growing out of the accident. The reply put the new matter in the answer in issue.

The testimony on the part of the plaintiff tended to prove as follows: The plaintiff, with a companion named Doyle, started from Springfield, Ill., to go to Kansas City. Their purpose was to travel by railroad, but not to pay railroad fare. They managed to travel on different freight trains from Springfield, Ill., to Odessa, Mo. From Springfield to Jacksonville they paid nothing, from Jacksonville to Roodhouse they paid a brakeman 50 cents, and between Roodhouse and Odessa they paid another brakeman 75 cents. They were not in a caboose at any time, but on freight cars. At Odessa they approached a brakeman and asked him to let them ride to Kansas City. The brakeman agreed to let them do so on condition that they would help unload freight, which they agreed to do, and during the journey they did assist in unloading freight at one or two stations. At one of those stations the conductor stood by and saw them at work, and directed the plaintiff where to put the freight. From Odessa to a way station plaintiff and Doyle rode on a car loaded with rock ballast. After that car was dropped out of the train they rode on top of a box freight car, sitting on the running board, and the conductor passed them once or twice while they were there. At a point about five miles west of Independence the train came to a side track on which some cars were standing which it was the business of this train to take in. The train ran past the switch and stopped on the main track. In stopping the train the conductor came out of the cupola of the caboose and set the brakes on the car on which the plaintiff was riding. As soon as the train was stopped, it was started back, and came to the switch, and was going to back in on the switch, and just then the passenger train came around the curve and collided violently with the freight train, breaking several cars into fragments. The plaintiff and Doyle were thrown to the ground and injured. As soon as the freight train in backing reached the point of the switch, and before it had quite stopped, the conductor and one of the brakemen got off and walked over to the cars on the switch track and began taking the numbers of the cars that were to be taken into the train, and were so engaged when the collision occurred. On the part of the defendant the testimony tended to show that neither the conductor nor any one of the train crew knew that these men were on the train. At Odessa a party of young men, 15 or 20, took passage on the train for Oak Grove, where there was to be a ball game played. The train was late, and these young men, in order to make time, volunteered to assist in handling the freight at the stations, and did so. It was not unusual along the line of that road for draymen who came to the stations and wanted to get the hauling to also assist the trainmen in handling freight, and the conductor testified that whilst he saw some men helping in that way he thought they were either these young men going to the ball game or draymen. He did not know that any one was on the train with the understanding that he was to help handle freight in consideration of being carried; that he never saw either the plaintiff or Doyle until he saw them in the hospital the next day. The conductor also testified that, whilst he had a time card showing that this passenger train was due there at that time and if he had thought of it he would have known it, yet the fact was he had for the moment forgotten it. There was a good deal of testimony on both sides relating to the extent of the plaintiff's injuries, his treatment, and the alleged release; but the foregoing is substantially the tendency of the evidence on both sides relating to the question of the plaintiff's right to recover at...