Edmondson v. Missouri Pac. R. Co.

• Decision Date: 02 July 1924
• Docket Number: No. 3423.,3423.
• Citation: 264 S.W. 470
• Parties: EDMONDSON v. MISSCURI PAC. R. CO.
• Court: Missouri Court of Appeals

264 S.W. 470

EDMONDSON v. MISSCURI PAC. R. CO.

No. 3423.

Springfield Court of Appeals. Missouri.

July 2, 1924.

Appeal from Circuit Court, Butler County; Almon Dag, Judge.

Action by Alf Edmondson against the Missouri Pacific Railroad Company, a corporation. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

James F. Green, of St. Louis, and J. 0. Sheppard, of Poplar Bluff, for appellant. Sam M. Phillips, of Poplar Bluff, for respondent.

COX, P. J.

This case was submitted at the October, 1923, term, and an opinion handed down reversing the case without remanding. A motion for rehearing by plaintiff was sustained, and the case reargued at this term and again submitted. We are now convinced that our former opinion in this case was erroneous, and shall dispose of the case without further reference to that opinion.

The action in this case is for damages for personal injury. In the trial court a verdict and judgment went for plaintiff for $4,000 and defendant appealed.

The plaintiff shipped a carload of cattle over defendant's road from Tuckermann, Ark., to Dudley, Mo. Plaintiff was to be carried free as a caretaker of the cattle. The cattle were loaded in a car at Tuckermann, Ark., about 2 o'clock a. m. on February 24, 1922. After the cattle were loaded, and plaintiff was ready to go to the caboose to board the train, he discovered that the caboose was at the end of the train, a long distance from the depot, and, as his evidence tended to show, he was informed by the station agent of defendant and the trainmen in charge of the train that the train would not pull up and stop with the caboose at the depot, but he must go down the track to where the caboose then was in order to board the train. Between the depot and the caboose the track of defendant passed over a drainage ditch 12 to 14 feet deep and 40 to 50 feet wide. The night was dark, and as plaintiff and two companions were going along the track to the caboose plaintiff fell into the ditch and was injured.

One defense in this case is based upon the alleged failure of plaintiff to give written notice of his injury as he was required to do by the terms of the live stock shipping contract under which the cattle were shipped and plaintiff given free transportation. This contract was signed by plaintiff, and the part relied on as a defense in this case is as follows:

"In consideration of this free transportation, I hereby agree that in case of accident, wreck, mishap, or other casualty in which I am or shall receive any personal injury I will notify issuing carrier, in writing, through my home agent or other nearest and most convenient local agent of said carrier or the general superintendent of said carrier, of such injury, and of the time, place, circumstances, and extent thereof, and in default of my doing so within 30 days after the happening of such injury I hereby agree to waive any and all causes and right of action for or on account thereof, and I further agree that I shall not have any cause or right of action nor maintain any action for any injury, except that of which I shall in said notice aforesaid advise the said carrier."

The plaintiff met this defense by a general denial and a plea of waiver by defend" ant of the above provision of the contract.

The facts relied upon by plaintiff to constitute a waiver of the provision of the contract above set out are that the station agent of defendant at Tuckermann, Ark., the place where the injury occurred, had actual knowledge of the injury and all the facts connected with it on the same day that the injury occurred, and acted upon that knowledge, and had plaintiff examined by a physician to ascertain the nature and extent of his injuries, and also reported the injury to the division superintendent and to the claim department of defendant ? that the claim agent of defendant was informed of the injury on the same day and entered into negotiations with plaintiff in reference to a settlement of any claim he might have for damages on account of his injury, and instructed plaintiff to write him in reference thereto. This conduct on part of the station agent and claim agent of defendant was not as fully pleaded as we have set them out, but are shown by the evidence. As stated, the injury occurred about 2 o'clock a. m. on February 24, 1922. After the injury, the plaintiff went to a boarding house and stayed the remainder of the night. The station agent of defendant at Tuckermann had him examined by a physician and reported the injury as above stated. Later on the same day plaintiff purchased a ticket, and went to Poplar Bluff, Mo., where he was met by a claim agent of defendant, who talked with him about his injury, and then boarded the train with plaintiff at Poplar Bluff, and rode with him to his destination, and tried to settle the claim of plaintiff with him. They did not settle, and the claim agent asked plaintiff to write him when he got ready to settle. The plaintiff did write the claim agent two letters, one dated March 11, 1922, and another March 22, 1022, in both of which he informed the claim agent that he wanted to settle his claim. This was all that occurred within the 30 days after the injury.

Respondent's counsel did not controvert the binding force of the contract which required plaintiff to give written notice of his injury within 30 days. His first contention is that the contract cannot be used as a defense to this action because it was first breached by defendant, and seeks to invoke the generally recognized rule that when a contract contains dependent provisions—that is, when each party has some duty to perform—a party who has violated the terms imposed upon him cannot thereafter maintain an action against the other party for a breach of the contract. It is said that defendant agreed to carry plaintiff as a passenger, but the wrong and negligence of defendant was in requiring plaintiff, in order to reach the caboose, to go in the darkness across the ditch into which he fell, and, plaintiff having fallen into the ditch in trying to obey defendant's instructions, it was the wrong of defendant that prevented plaintiff from boarding the train and being thereafter transported thereon, and for that reason it is contended that defendant first breached the contract, and hence cannot now avail itself of the contract as a defense to plaintiff's action. This position is erroneous in this case, for the reason that, in a legal sense, the plaintiff became a passenger, and the relation of carrier and passenger was fully established between plaintiff and defendant as soon as he arrived at the depot ready to board the train and before he started to go to the caboose for that purpose. Albin v. C., R. I. & P. R. R. Co., 103 Mo. App. 308, 316, 77 S. W. 153; Bledsoe v. West, 186 Mo. App. 460, 405, 171 S. W. 622.

Since plaintiff was a passenger at the time of the injury, it could make no difference at what particular time or place the injury occurred. The legal status of the parties, under the facts in this case, is the same as it would have been if the plaintiff had boarded the train and the injury had occurred after the train left the station. This point must be ruled against respondent.

On the question of waiver the appellant contends that the same rule must apply in this case as in injuries to freight which are controlled by the federal statutes and decisions of the federal courts, and hence that the provision in the contract for written notice of the injury cannot be waived. Had the injury been to plaintiff's cattle instead of to himself, this position would be correct, unless the statute as it now stands has changed the rule. We shall advert to this statute later. Since the shipment of the cattle was an interstate shipment, a claim for injury to them would be governed by the federal statute. This has been so held by the United States Supreme Court as well as by our own courts. Banake v. Mo. Pac. R. R. Co., 193 Mo. App. 345, 186 S. W. 7; Cunningham v. Mo. Pac. R. R. Co. (Mo. App.) 219 S. W. 1003.

We are of the opinion that the rights of the parties in personal injury cases are not affected by the federal statutes, but are to be determined under the common law. Gooch v. Oregon Short Line R. R. Co., 258 U. S. 22, 42 Sup. Ct. 192, 66 L. Ed. 443; Chicago, R. I. & I'. R. R. Co. v. Maucher, 248 U. S. 359, 363, 39 Sup. Ct. 108, 63 L. Ed. 204, 296; Van Zant v. Kansas City Southern Ry. Co....