Ephland v. Missouri Pacific Railway Company
| Decision Date | 26 January 1897 |
| Citation | 37 S.W. 820,137 Mo. 187 |
| Parties | Ephland v. Missouri Pacific Railway Company, Appellant |
| Court | Missouri Supreme Court |
Rehearing Denied 137 Mo. 187 at 196.
Appeal from Henry Circuit Court. -- Hon. James H. Lay, Judge.
Certified from Kansas City Court of Appeals.
Affirmed.
R. T Railey and Lon O. Hocker for appellant.
(1) Plaintiff assumed the risk incident to his position, since it was more dangerous than that regularly provided for passengers, and since he took it, not from necessity, or at the request of defendant, but for his own pleasure. Carroll v. Railroad, 107 Mo. 653; Tuley v Railroad, 41 Mo.App. 432; Smotherman v. Railroad, 29 Mo.App. 265; Harris v. Railroad, 89 Mo. 233; Hickey v. Railroad, 14 Allen, 433; Railroad v. Hoosey, 44 Am. Rep. 120; Railroad v. Fay, 63 Am. Dec. 329; Brown v. Railroad, 49 Mich. 153; Doggett v. Railroad, 34 Iowa 285; Railroad v. Thomas, 1 Am. and Eng. R. R. Cases, 79; Torrey v. Railroad, 147 Mass. 412; Bates v. Railroad, 147 Mass. 255; Files v. Railroad, 149 Mass. 206. (2) Even if it be conceded that Lamb exclaimed "jump off," and that plaintiff acted upon said suggestion, and did jump off the rear end of the train while it was traveling fifteen miles per hour, yet as Lamb was not acting in his line of duty in making such exclamation -- if he did make it -- nor within the scope of his employment, the defendant is not liable therefor, although said Lamb may have been guilty of personal negligence in making use of said expression. Haehl v. Railroad, 24 S.W. 740; Farber v. Railroad, 116 Mo. 93; Sherman v. Railroad, 72 Mo. 65; Towanda Coal Co. v. Herman, 86 Pa. St. 418; Railroad v. Perry, 27 S.W. 497; Davis v. Houghtelin, 50 N.W. 766; Snyder v. Railroad, 60 Mo. 419; Cousins v. Railroad, 66 Mo. 572; Golden v. Newbrand, 52 Iowa 59. (3) There being no real danger, and no reasonable cause to apprehend any, plaintiff was guilty of contributory negligence in running out of the caboose, and jumping off a train going fifteen miles an hour, in the opposite direction from which he jumped. Railroad v. Felton, 33 Am. and Eng. R. R. Cases, 533; Railroad v. Wallen, 26 Am. and Eng. R. R. Cases, 219; Filer v. Railroad, 49 N.Y. 52; Railroad v. Aspell, 52 Am. Dec. 323; Railroad v. Rosenberry, 11 S.W. 212; Kleiber v. Railroad, 107 Mo. 249; Harris v. Railroad, 89 Mo. 233; Smotherman v. Railroad, 29 Mo.App. 265; Peck v. Railroad, 50 Conn. 379; Spohn v. Railroad, 22 S.W. 692; Railroad v. Ware, 1 S.W. (Ky.) 494. (4) Even if Lamb had been at the brake, and while in the line of his duty had said "jump off," yet as there was no imminent danger, and no reasonable cause for anticipating any, and as there was no occasion for such remarks, and as the brakeman was facing the south and looking toward the engine instead of the passengers, and did not know the passengers were off until the train stopped, it can not be said that defendant was bound to anticipate that an adult, riding in the caboose, where the usual business of the company was transacted, and often done hurriedly, would recklessly jump off the train, in the opposite direction from which it was traveling, simply because the brakeman said "jump off." The demurrer to the evidence should therefore have been sustained. Henry v. Railroad, 76 Mo. 294; Cooley on Torts, p. 68, et seq.; Bishop on Noncontract Law, secs. 42, 43; Brown v. Railroad, 20 Mo.App. 225; Searle v. Railroad, 65 Texas, 274; Hudson v. Railroad, 101 Mo. 33; Ewing v. Railroad, 23 A. 340; Corrister v. Railroad, 25 Mo.App. 628; Birney v. Railroad, 71 Ill. 392; Christy v. Hughes, 24 Mo.App. 277; Hicks v. Railroad, 46 Mo.App. 309; Snelling v. McDonald, 14 Allen, 292; 1 Sutherland on Damages, 23.
Graves & Clark for respondent.
(1) The evidence shows that plaintiff was in a car provided for passengers and therefore could not have assumed any risk by being there. Ephland v. Railroad, 57 Mo.App. 147; Tibby v. Railroad, 82 Mo. 292; Ashbrook v. Railroad, 18 Mo.App. 304; Gentle v. Railroad, 33 Mo.App. 361. (2) But grant it that when plaintiff entered the caboose, that he took upon himself the necessary inconvenience and risk which accompany that sort of a car, in its relation to the management of the train, this does not interfere with plaintiff's right to recover in this case. The evidence discloses conduct not usual in the ordinary business of running the train and his position there was not the cause of the injury. Ephland v. Railroad, 57 Mo.App. 147. (3) The carrier is under obligations to carry the passenger safely and properly and treat him respectfully; and holds him responsible for the conduct of his servants, to whom he intrusts the performance of this duty. He is bound to protect his passengers from the violence and insults from strangers and copassengers, and a fortiori against the violence and insults of his own servants. Farber v. Railroad, 116 Mo. 91; Croker v. Railroad, 36 Wis. 657; Railroad v. Flexman, 103 Ill. 546; Spohn v. Railroad, 101 Mo. 452; Spohn v. Railroad, 87 Mo. 81; Eads v. Railroad, 43 Mo.App. 545; Goddard v. Railroad, 57 Me. 202; Railroad v. Jackson, 6 Am. and Eng. R. R. Cases (Ind.), 180; Railroad v. Hines, 53 Pa. St. 212. (4) Whether it was negligence for plaintiff to leave the car under the circumstances in this case is and was a question for the jury. Beach on Contributory Negligence [2 Ed.], sec. 40; Whitaker's Smith on Negligence, sec. 392; Hutchinson on Carriers, sec. 534; 2 Shearm. and Redfield on Negligence, sec. 647; Kleiber v. Railroad, 107 Mo. 240; Dimmitt v. Railroad, 40 Mo.App. 654; Siegrist v. Arnot, 87 Mo. 208; Jones v. Boyce, 1 Stark, 493. (5) "The law has so high regard for human life that it will not impute negligence to an effort to preserve it." This is in a case where the attempt is made to save others from apparent danger. The rule is and should be stronger, where one is attempting to save himself from threatened danger. Peyton v. Railroad, 41 Am. and Eng. R. R. Cases (La.), 550; Eckert v. Railroad, 43 N.Y. 503; Beach on Contributory Negligence [2 Ed.], sec. 42; Thompson on Negligence, 1174; Pierce on Railroads, 328; Rorer on Railroads, 1029. (6) Having directed the act to be done the defendant is estopped from claiming that it was contributory negligence to obey the directions of its servants. The brakeman was in a position to know the dangers, if any, impending at the time. And from that position having given the orders and directions to these passengers the company is estopped from now saying that they were guilty of contributory negligence. Morrissey v. Ferry Co., 47 Mo. 54; Tibbey v. Railroad, 87 Mo. 292; McGee v. Railroad, 92 Mo. 208; McIntyre v. Co., 57 N.Y. 286; Fuller v. Railroad, 39 N.Y. 351; Burcher v. Railroad, 98 N.Y. 128; 2 Redfield on Railroads, 278, and note; Thompson on Carriers, p. 227, note 6; Beach on Contributory Negligence [2 Ed.], secs. 67, 68.
This action is for damages on account of bodily injuries sustained by plaintiff on account of the alleged negligence of defendant.
The case has been twice tried, each trial resulting in a judgment for plaintiff. On appeal the first judgment was reversed by the Kansas City court of appeals. 57 Mo.App. 147. Defendant also appealed from the second judgment to the same court, and the case was certified to this court; the opinion, which resulted in an affirmance of the judgment, and which was agreed to by a majority of the court of appeals, being deemed by one of the judges to be in conflict with certain decisions of the supreme court.
Only one point is insisted upon by defendant as ground for reversal, and the facts need only be briefly stated:
Defendant operates a railroad from Butler, south. On the morning of the twelfth day of March, 1892, it ran a mixed train out of Butler on said road. The train was composed of some freight cars; a combination car for carrying passengers, their baggage, and the mail; and a caboose for the convenience and accommodation of the train men. The last named was the end car of the train, and, by permission of the company, was used by passengers for a smoking car.
It was constructed in the usual manner, with a cupola in the front end. The brake ran up into the cupola on the right or west side, near which a seat for the rear brakeman was provided. The cupola on the left side was provided with two seats, -- one for the conductor, and the other for the use of the other brakeman when not actually engaged in his duties on the train. The car was designed for use in freight trains. From the seats in the cupola the movements of the train could be observed by the conductor and brakeman. The position of the brakeman in charge of the brakes was in view of the passengers, but the two seats on the opposite side were not.
The train on this morning was in control of a conductor, and he had under him two brakemen, named Lamb and Little. The duties of the latter were on the hind end of the train, and his proper position while the train was moving was at the brake in the cupola. Lamb is denominated by the witnesses as a "swing brakeman." His duties, as defined by the conductor, were to take charge of the train, and do the switching, in the conductor's absence.
The conductor testified: "When we arrive at a station, the station agent has a switch list, which he gives the conductor, and the bills which are to go, and gives the switch list to the swing brakeman, and while the conductor attends to the other part in loading freight, and, if he gets car out, to go; the swing brakeman does this with the assistance of the front brakeman." This brakeman had no duty to perform in the caboose; had nothing to do with directing passengers or calling out stations.
On starting the train from Butler, Little took his proper position at the brake in the...
To continue reading
Request your trial