Drolshagen v. Union Depot Railroad Company

• Decision Date: 15 February 1905
• Citation: 85 S.W. 344,186 Mo. 258
• Parties: DROLSHAGEN v. UNION DEPOT RAILROAD COMPANY, Appellant
• Court: Missouri Supreme Court

85 S.W. 344

186 Mo. 258

DROLSHAGEN v. UNION DEPOT RAILROAD COMPANY, Appellant

Supreme Court of Missouri, First Division

February 15, 1905 ^[*]

Appeal from St. Louis County Circuit Court. -- Hon. Jno. W McElhinney, Judge.

Reversed and remanded.

Boyle Priest & Lehmann and George W. Easley for appellant.

(1) The court erred in overruling defendant's objection to the introduction of any evidence. The first count falls far short of alleging that the act charged was within the scope of his employment. The fact that the motorman and driver was in charge of the car, at the time of the alleged commission of the acts, does not state a case. The pleading must go further and show that the motorman was "engaged in the service he had been engaged to render." Cousins v Railroad, 66 Mo. 572; Doldan v. Hubinger, 80 N.W. 514, 6 Am. Neg. Rep. 506. (2) There was no evidence offered by either side as to what the duties of the motorman's employment were. His duties are not fixed by law, and were a matter of proof, to be shown by the plaintiff, and in the absence of proof that he had authority to eject trespassers from the car, plaintiff was not entitled to recover upon the first count. Farber v. Railroad, 32 Mo.App. 381; Farber v. Railroad, 116 Mo. 81; Farber v. Railroad, 139 Mo. 272; Walker v. Railroad, 121 Mo. 575; McPeak v. Railroad, 128 Mo. 643. The fact that the act causing the injury was in the scope of the duties of defendant's agent must be both alleged and proven. The failure of either is fatal to a recovery. Raming v. Railroad, 157 Mo. 509; Railroad v. Anderson (Tex.), 17 S.W. 1039; Farber v. Railroad, 116 Mo. 81; Krueger v. Railroad, 84 Mo.App. 366.

A. R. Taylor for respondent.

In this record we find the offending motorman in this case actually on the car at his place of duty, actually controlling the movement of the car, holding, as appellant urges in his brief, the relation of driver, for he urges that he holds the same relation to the street car that an engine driver holds to the engine and train. He has control of the brakes and stopping appliances of the car, much the same as the engine driver of the engine. The car moves by his act; the car stops by his act. He receives passengers; he discharges passengers; that is, he does the essential acts connected with this vital part of the business of the operation of the car. This appears in the record in connection with the duties of the motorman. When a passenger desires to enter a car he signals the motorman, not the conductor. The motorman stops the car, not the conductor. Now, we urge that these well-established facts pertaining to the duties of the motorman necessarily imply the authority to tell a child to get off a car, and to remove a child from the car. He stops the car to receive and to discharge a passenger. This case of a street car is markedly different from a steam car. With the latter there is a long train. There is but one man intrusted with the power to stop the train. This is the conductor. He alone gives the order to the engineer controlling the stopping and starting of the train. He does not stop at the signal of passengers, but only stops when signaled by the conductor to do so. The brakemen have nothing to do with stopping the car, except when ordered by a superior to do so. Neither the brakeman nor the engineer of a steam railroad carrier has any direct connection with the reception or discharge of passengers. But in the case of the motorman, he has more to do with the receipt and discharge of passengers than the conductor. He, not the conductor, accepts the signal of the passenger that he desires to become a passenger. The motorman accepts the proposal of the passenger, and by his act in doing so and receiving the passenger on the car completes the contract to carry the passenger in behalf of the carrier. This is clearly inferable from the record in the case, and, as every one knows, is the usual way of carrying on the business, for from the nature of the business the motorman is first brought into relation with the intending passenger. His place on the forward end of the car makes him the one to whom in the first instance the passenger must first propose to become a passenger. If he does not accept the proposal he does not stop his car, and there is no relation of passenger and carrier established, no contract made. Schepers v. Railroad, 126 Mo. 673; Ephland v. Railroad, 137 Mo. 194.

VALLIANT, J. Robinson, J., absent.

OPINION

VALLIANT, J.

Plaintiff sues to recover the penalty prescribed by the statute, section 2864, Revised Statutes 1899, for the death of his minor son caused by being run over by a street car of defendant. The petition is in four counts: in the first it is stated that the boy was on the car and was forcibly ejected therefrom by the negligent act of the motorman; the second, that the boy was on the car and was ejected therefrom by the motorman striking him unlawfully, willfully and with criminal intent; the third, that the boy was on the public street, and that the motorman negligently ran the car against him and over him; the fourth, that the boy was run over because the motorman failed to observe the requirements of the "vigilant watch" ordinance of the city. The answer was a general denial and a plea of contributory negligence.

Before the beginning of the trial defendant moved the court to require the plaintiff to elect upon which count he would go to trial, because they were inconsistent. The motion was overruled and defendant excepted.

I. The motion to elect should have been sustained. A plaintiff may state his cause of action in different forms in separate counts to meet any phase of the case which it is anticipated the evidence might show, but in doing so he must not in one count make statements which are so inconsistent with his statements in another count as that the proof of the case as stated in one count disproves that as stated in the other. Repugnancy is as bad in a petition as it is in an answer. [Roberts v. Railroad, 43 Mo.App. 287; Enterprise Soap Works v. Sayers, 51 Mo.App. 310; Brownell v. Railroad, 47 Mo. 239; Brady v. Connelly, 52 Mo. 19; St. Louis to use v. Allen, 53 Mo. 44; Owens v. Railroad, 58 Mo. 386, l. c. 394; Rinard v. Railroad, 164 Mo. 270, l. c. 284.] The statements in the first and second counts of the petition are so inconsistent with those of the third and fourth counts that if those in the first two are true those in the last two must be untrue.

If the accident occurred in consequence of the motorman striking the boy on the hand with a blunt instrument thereby breaking his handhold and causing him to fall off the running board on which he was riding, as stated in the first and second counts, then it did not occur by running the car against him and over him while he was on the street or by the failure of the motorman to keep a vigilant watch for him as he approached the car, as stated in the third and fourth counts. Section 626, Revised Statutes 1899, authorizes a party to plead alternatively, but these contrarieties are not so pleaded. But as the finding and judgment were for the defendant on the second, third and fourth counts, perhaps the error in overruling the motion to elect was not prejudicial.

II. The verdict and judgment were for the plaintiff on the first count for $ 5,000, and that is the judgment from which defendant has prosecuted this appeal.

The first assignment of error is that the first count does not state facts sufficient to constitute a cause of action, in that it fails to state that the act of the motorman, which it is alleged caused the injury, was within the scope of his employment. This point was made at the trial in the form of an objection to any evidence under this count for that reason; the objection was overruled and exception taken.

The averments of the first count are that the plaintiff's son was standing on the running board of the moving car holding with his hands to a bar running lengthwise along the side of the car, when the "motorman and driver" in charge of the car, "to further the business of the defendant as his employer," ejected the boy from the car by striking him upon the hand and arm with a blunt instrument, thereby causing him to lose his hold and to be thrown and fall from the car and be run over and killed. The words above quoted, "to further the business of the defendant as his employer," are the only words in the petition which it is claimed charge that the act alleged to have been done by the servant was within the scope of his employment.

If the pleader when he wrote those words was intending to make a positive declaration that the act was within the scope of the servant's employment, he could have found other words that would have expressed the idea with more certainty. But we have frequently said that where objection is not made to a petition until the trial is about to begin, if the petition is susceptible of a construction that will constitute it a good pleading it will be so construed, and we are inclined to take that view of this petition. But if it should be conceded to the plaintiff that his petition, under the circumstances, is sufficient, still the defendant's objection arises again in another form, that is, that there was no evidence on the subject of the motorman's duties or as to the scope of his employment.

In answer to this position the counsel for respondent in his brief says: ...