Graves v. Missouri Pac. R. Co.

• Decision Date: 03 May 1938
• Docket Number: 32651
• Parties: Via Graves v. Missouri Pacific Railroad Company, a Corporation, Appellant
• Court: Missouri Supreme Court

118 S.W.2d 787

342 Mo. 542

Via Graves v. Missouri Pacific Railroad Company, a Corporation, Appellant

No. 32651

Supreme Court of Missouri

May 3, 1938

Appeal from Pettis Circuit Court; Hon. Dimmitt Hoffman Judge;

Affirmed.

Thomas J. Cole, Forrest P. Carson, Ragland, Otto & Potter and Montgomery, Martin & Montgomery for appellant.

(1) The submission of the case on the single instruction on measure of damages was clearly prejudicial error. Without any guidance the jury were left to assume, as they no doubt did that plaintiff, because in the freight car, was a passenger and was entitled to recover for the injuries he sustained through the derailment of the car as a matter of course. Dorman v. East St. Louis Ry. Co., 335 Mo. 1082; Arnold v. May Department Stores Co., 337 Mo. 739. (2) Had he been riding in the caboose he would have suffered no injury. His riding in the freight car was the proximate cause of his injury. On this ground alone defendant's demurrer to the evidence should have been sustained. Scrivner v. Ry. Co., 260 Mo. 433; Chaney v. Railroad Co., 176 Mo. 598; Vulgamott v. Hines, 229 S.W. 394. (3) Plaintiff at the time of his injury was, at most, a bare licensee to whom the defendant owed no duty except to refrain from wantonly or intentionally injuring him. (a) Plaintiff did not sustain to the defendant carrier the relation of caretaker of livestock. Kansas City So. Railroad Co. v. Van Zant, 260 U.S. 459, 43 S.Ct. 176; Adams Express Co. v. Croninger, 226 U.S. 491, 33 S.Ct. 148; Kirkendall v. U. Pac. Railroad Co., 200 F. 197; Miller v. Me. Cent. Railroad Co., 47 A. L. R. 725; 49 U.S.C. A., sec. 6, pars. 1, 7; Dimmitt-Caudle-Smith Livestock Comm. Co. v. C. B. & Q. Railroad Co., 47 I. C. C. 322; Cicardi Bros. Fruit & Produce Co. v. Pennsylvania Co., 213 S.W. 531; Thee v. Wabash Ry. Co., 217 S.W. 566; C. & A. Railroad Co. v. Kirby, 225 U.S. 155, 32 S.Ct. 648; Hamlen & Sons Co. v. Ill. Cent. Railroad Co., 212 F. 324; Norfolk So. Ry. Co. v. Chatman, 244 U.S. 276. (b) Plaintiff was not a passenger. O'Donnell v. Railroad Co., 197 Mo. 110; Banks v. Kansas City Ry. Co., 280 Mo. 227. (c) Plaintiff was either a trespasser or a licensee. Menteer v. Fruit Co., 240 Mo. 177; Glaser v. Rothschild, 221 Mo. 180; 45 C. J. 796, sec. 201; O'Donnell v. Railroad Co., 197 Mo. 110.

Wendell W. McCanles for respondent.

(1) The petition plead that the defendant was a common carrier for hire, and it plead specifically that plaintiff was a passenger. Under the allegation that plaintiff was a passenger the evidence that his fare was paid and that he thereby became a passenger was clearly admissible under the petition. (2) The blank contract offered in evidence by defendant provides that on shipments of livestock chiefly valuable for breeding, raising, and show purposes, different rates of freight are in effect dependent upon the valuation placed thereon by the shipper. During the oral argument the court asked counsel for defendant if the carrier could not have charged an additional rate for the transportation of these fancy horses which would have included the extra fare for the additional caretakers. Counsel said not, that such a thing was absolutely illegal. In the case of Norfolk So. Ry. Co. v. Chatman, 244 U.S. 276, the Supreme Court of the United States answers that question in the affirmative. (3) Since plaintiff testified his transportation had been paid for by his boss and thereby made a prima facie case it became the duty of the defendant to produce the conductor and the real contract covering the matter of transportation and not rely on a blank form and the failure so to do furnished a presumption that the contract was adverse to defendant's contention. Rissel v. Ry. Co., 81 S.W.2d 621; Shidloski v. Ry. Co., 64 S.W.2d 259. The court will take judicial notice that railroad companies keep carbon or duplicate copies of its contracts made with shippers of livestock. Ivey v. Yancey, 129 Mo. 501; Morrow v. Mo. Pac. Railroad Co., 140 Mo.App. 217. Plaintiff entitled to recover under either the Federal or State Law. Horst v. Indianapolis Railroad Co., 93 U.S. 291; Philadelphia & Reading Railroad Co. v. Derby, 14 How. 486; Stanborn World v. King, 16 How. 469; New York Cent. Railroad Co. v. Lock, 17 Wall. 357; Southern Pac. Co. v. Schuyler, 227 U.S. 612. (4) Defendant's position is inconsistent. (5) Plaintiff did not assume risk and was not guilty of contributory negligence as a matter of law. (6) Defendant admits caretakers permitted to ride with horses.

OPINION

Tipton, J.

In the Circuit Court of Pettis County, Missouri, respondent recovered a judgment against appellant in the sum of $ 10,000, for personal injuries received when appellant's freight train on which he was riding was derailed.

Respondent was in the employ of J. W. Morrison. Morrison owned six show horses which he exhibited at the American Royal Stock Show at Kansas City, Missouri, in November, 1931, and at the close of that show these horses were being shipped from Kansas City to Chicago, Illinois. The car in which the horses were being shipped was divided into stalls, three at either end of the car; the middle of the car was arranged to carry the trunks, beds of caretakers, sulkeys, saddles and harness, and it was there that respondent and three other employees of Morrison rode. Respondent was employed to shoe the horses, but when not so engaged he was required to assist in taking care of them. As the train to which this car was attached approached Myrick, Missouri, it was derailed, causing respondent to be seriously injured.

Appellant's main contention is that its demurrer to the evidence should have been sustained. Respondent's petition alleged that the operation and management of the train was under the direct control and suprvision of appellant and that he (respondent) had nothing whatever to do with same; "that he was riding as an attendant of stock as aforesaid with the knowledge and permission of the said defendant (appellant) and was a passenger thereof."

Appellant's answer denies that respondent was a caretaker for the shipment of livestock, that he purchased at any time a drover's ticket before boarding appellant's train, that he signed the caretaker's contract, that he paid or offered to pay any sum whatsoever for transportation, or that he entered into any contractual relationship whatsoever for transportation on appellant's railroad. It stated that if respondent was riding in and with a car of livestock being transported by appellant from Kansas City, Missouri, to Chicago, Illinois, on November 22, 1931, as alleged in the petition, his presence was unlawful and in violation of the tariffs regulating the transportation of attendants of livestock transported in interstate commerce as approved by the Interstate Commerce Commission, and the laws of Missouri relating thereto, and that he was a trespasser and not an attendant of livestock nor a passenger.

Appellant does not deny that the derailment was caused by its negligence, but contends that the relationship of carrier and passenger did not exist between it and respondent. As we view the pleadings in this case, the ultimate fact to be determined is: Was respondent a passenger at the time he was injured?

Appellant introduced in evidence as an exhibit a certified copy of a joint circular of the freight traffc department and passenger traffic department on file with the interstate commerce commission. It provides that one caretaker is entitled to accompany shipment of one car of livestock, and if more than one caretaker accompanies the car, then tickets will be furnished the additional caretakers at the lowest one-way fare, and such tickets must be endorsed on the back showing names of attendants, name of shipper, number and date of freight waybill, point of origin and point of destination. It also provides that, "Attendant or attendants will be provided with regular livestock contract by the carrier's agent at shipping point, which, when properly executed, will be accepted by the conductor of the train on which the stock is handled as the authority for the free transportation of such attendant or attendants. Conductors in charge of train on which the stock is transported will certify in the space provided on the livestock contract for such certification, that such attendant or attendents actually accompanies the stock between the points where the stock was handled on his train."

There was also introduced a certified copy of interstate freight tariffs of appellant on file with the Interstate Commerce Commission. It contains the uniform livestock contract and sets out the regulations regarding free transportation, in conformity with the joint circular to which we have already referred.

This being an interstate shipment, it was governed by the Interstate Commerce Act and amendments thereto. This act (49 U.S.C. A., sec. 6, par. 1) provides that every common carrier shall file with the Interstate Commerce Commission and print and keep open to public inspection schedules showing all rates, fares and charges for transportation between points on its own route and points on routes of any other carrier. This act further provides that all contracts of shipment must be in writing, and no contract can be entered into between a carrier and a shipper that has not been approved by the commission. The object of the act is to provide equal facilities to all shippers; that is, to give every shipper the same service for the same rate. Any special contract entered into between a carrier and a shipper which is not open to all shippers is void. [Adams Express Co. v. Groninger, 226 U.S. 491, 33 S.Ct. 148; Kirkendall v. Union Pac. Railroad Co., 200 F. 197; Miller v. Maine Central Railroad Co., 47 A. L. R. 720; Cicardi Bros. Fruit &...