Fisher v. The Pullman Company
| Decision Date | 22 June 1923 |
| Parties | GEORGE B. FISHER, Appellant, v. THE PULLMAN COMPANY, a corporation, Respondent |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon Charles B. Davis, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Albert E. Hausman for appellant.
(1) The court erred in excluding the statement of defendant's porter, that he could not keep watch on passengers' baggage when they (the company) let people go through the aisle of the car continually, as they did on the night in question. It was a statement made while the porter was in the discharge of his duty to find and restore plaintiff's hand bag, and therefore a part of the res gestae. Hampton v. Pullman Co., 42 Mo. App 134; Levi v Railroad, 157 Mo.App. 536, 545; Thompson v. St Louis & S. F. Ry. Co., 59 Mo.App. 37, 40; McDermott v. Hannibal & St. J. R., 87 Mo. 285; Bergman v. Indianapolis, 104 Mo. 77; Adams Expr. v. Berry, 35 App. Dis. Columbia, 208; Morse v. Connecticut Railroad, 6 Gray (Mass.) 450; Lane v. Boston R. R., 112 Mass. 455. (2) The statement of defendant's porter that he could not watch the baggage if they (the company) permitted people to go through the car, was admissible to show his knowledge of the danger of theft, and fix upon him the duty of a constant watch while people were passing through the aisle, in view of the testimony of plaintiff that people had been passing through the car during the night. Chapman v. Erie R. R., 55 N.Y. 583; Louisville & Nashville v. Mothershed, 197 Ala. 261; Elledge v. National City, 100 Cali. 282; Baird v. Howard, 89 Tenn. 584; Union Central Life Ins. Co. v. Pollard, 94 Va. 146; Olson v. Seldovia Salmon Co., 88 Wash. 225; Kidd v. Pill and Medicine Co., 91 Iowa 261; 8 Encyclopedia of Evidence, pages 16-18; Woodruff v. Diehl, 84 Indiana, 474; Carpenter v. New York, 124 N.Y. 53; 22 C. J. 284, par. 302. (3) The court erred in giving and reading to the jury defendant's instruction No. 2. Bevis v. B. and O., 26 Mo.App. 19; Scaling v. Pullman, 24 Mo.App. 29; Root v. Sleeping Car Co., 28 Mo.App. 199; Goldstein v. Pullman Co., 220 N.Y. 549; Kates v. Pullman, 95 Ga. 810; Pullman v. Schaffner, 126 Ga. 609; Pullman v. Freudenstein, 3 Colo.App. 540; Robinson v. Southern R. Co., 40 App., Dist of Col., 549. (4) The court erred in giving and reading to the jury defendant's instruction No. 3. Same authorities as cited under Point 3. (5) The court erred in refusing to set aside the verdict of the jury because it was without any evidence to support it. (6) The jury misunderstood the instructions of the court. Therefore, the verdict should have been set aside.
Lehmann and Lehmann and Thos. R. Reyburn for respondent.
(1) Testimony of plaintiff concerning statements of the porter were properly excluded as "hearsay." Such statements are neither admissible as declarations or as part of the "res gestae." Gotwald v. Transit Co., 102 Mo.App. 492; Barker v. Railroad, 126 Mo. 143; McDermott v. Railroad, 73 Mo. 716; Rodgers v. McCune, 19 Mo. 558; Aldridge v. Furnace Co., 78 Mo. 563; Bevis v. Railroad, 26 Mo.App. 19; Corbett v. Railroad, 26 Mo.App. 621; Koenig v. Union Depot Co., 173 Mo. 698. (2) It was not the duty of porter to find and restore plaintiff's hand bag: (a) He being merely required to exercise ordinary care in guarding a passenger's effects. Dings v. The Pullman Co., 171 Mo.App. 643; Efron v. Wagner Palace Car Co., 59 Mo.App. 641; Root v. N. Y. Central Sleeping Car Co., 28 Mo.App. 199. (b) And consequently the statement was not made while discharging the duty to find and restore plaintiff's hand bag. (3) The excluded testimony merely attempted to show people passed through the aisle during the night. This is a matter of common knowledge and as the plaintiff so testified the evidence is merely cumulative. Appellant's abstract, page 4. (4) The excluded testimony, if anything, favored defendant, as it tended to prove the porter did all that was humanly possible. Appellant's abstract, page 6. (5) Defendant's instruction No. 2 has been approved by the court. Bevis v. B. & O. R. R. Co., 26 Mo.App. 19. (6) Defendant's instruction No. 3 was based on the law and decisions of this State. Dings v. The Pullman Co., 171 Mo.App. 643; Root v. Sleeping Car Co., 28 Mo.App. 199. (7) Even though the evidence is undisputed, if fairminded persons of ordinary intelligence might differ as to the inferences to be drawn therefrom, negligence is a question of fact for the jury. Gratiot v. Railway, 116 Mo. 450; Combs v. City of Kirksville, 134 Mo.App. 645; Schwyhart v. Barrett, 145 Mo.App. 332; Shamp v. Lambert, 142 Mo.App. 567; Johnson v. Ice Co., 143 Mo.App. 441; Munro v. Railroad, 155 Mo.App. 710; King v. Railroad, 143 Mo.App. 279. (8) Parties on appeal are bound by the theory in the trial court. Plaintiff's petition and given instruction submitted the question of negligence to the jury as a question of fact. The findings of fact of a jury are conclusive on appeal. Grimes v. Cole, 133 Mo.App. 522; Appellant's Abstract and Brief, pages 7-8-9; Diamond v. Mo. Pac. Ry. Co., 181 S.W. 12.
--Plaintiff instituted suit in a justice court of the city of St. Louis, on November 13, 1920, for loss of his traveling bag and contents, of the alleged value of $ 91.90, while a passenger on defendant's sleeping car between Texarkana and Tyler, Texas.
The cause was tried in the justice court, and thereafter in the circuit court de novo before a jury on the direct and cross-examination of plaintiff alone. The verdict and judgment being for defendant, plaintiff appeals.
The plaintiff on the night of October 15, 1920, having purchased both a railroad and Pullman ticket, became a passenger on the car of the defendant Pullman Company at Texarkana. The porter met him at the door of the car, took his hand-bag, led him to his berth already made up, placing the hand-bag beside or opposite the berth. Taking a few articles from it, plaintiff placed the bag under the berth occupied by him and closed the curtains, which extended to the floor. The sleeping car in which plaintiff was riding was sandwiched between two other cars. The next morning on arising at 5:30 a. m., he looked for his traveling bag, was unable to find it, and then proceeded toward the end of the car, looking as he went. The smoking compartment was situated at one end of the car, with the door thereof located on the side. On the extreme side of the car a short aisle leads from the smoking room with a right-angle turn to the main aisle, which runs through the center of the car. In a search for the traveling bag he found the porter in the smoking room. The Pullman conductor was not in sight, nor were other passengers up. On reporting the disappearance of the handbag to the porter, he, with the plaintiff, searched the sleeping car, but was unable to find it. During the night plaintiff several times heard people passing through the aisle of the car.
Plaintiff complains of the action of the trial court in sustaining an objection to the question asked him to state the conversation he had with the porter relative to the passage of people through the car during the night, and to the court's thereupon excluding plaintiff's offer of proof, to the effect that while the porter, the next morning, was helping plaintiff to search for his baggage he said to the plaintiff, that he, the porter, when they let people go through the aisle of the car continually as they did last night, could not be expected to keep a watch on the passengers.
We think the court erred in sustaining the objection and excluding the proof offered. The plaintiff purchased of defendant a contract, the purpose and object of which was to provide a place to sleep, contemplating the consequent loss of consciousness, and while asleep, including the care of his baggage and effects.
Relative to the care of baggage and effects so brought into the sleeping car, it became the duty of defendant to maintain, under these circumstances, the required vigilance. It was charged with the duty of keeping a reasonable watch. As was said in Goldstein v. Pullman Company, 220 N.Y. 549, 555, Charged with the correlative duties of quasi-custody and quasi-watching, the porter must, when required, give an account, that duty devolving upon him as the proper person from whom to seek the account. An accounting demanded of him is made within the scope of his employment, and the inquiry for property so placed in his quasi-care is properly made of him. The baggage having disappeared, it became the duty of the porter to make a search, and while making the search, within the scope of his employment during the continuance of the agency in relation to the transaction then depending, a declaration by him is made dum fervet opus, in the heat of action, and constitutes part of the res gestae.
The case at bar comes within the rule laid down in Hampton v Pullman Company, 42 Mo.App. 134. The case of Bevis v. Railroad, 26 Mo.App. 19, is not apposite, for there the question of admission of evidence related to a past transaction in which the porter, acting without the scope of his employment, was narrating history. The conclusion we have reached is supported by the following cases: Levi v. Railroad, 157 Mo.App. 536, 545, 138 S.W. 699; Thompson v. St. Louis & S. F. Ry. Co., 59 Mo.App. 37, 40; McDermott v. Hannibal & St. J. R. R., 87 Mo. 285; Bergeman v. Indianapolis, 104 Mo. 7, 15 S.W. 992; Adams...
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