Jones v. St. Louis S. W. Ry. Co.

• Decision Date: 22 December 1894
• Citation: 125 Mo. 666,28 S.W. 883
• Parties: JONES v. ST. LOUIS S. W. RY. CO.
• Court: Missouri Supreme Court

28 S.W. 883

125 Mo. 666

JONES v. ST. LOUIS S. W. RY. CO.

Supreme Court of Missouri, Division No. 1.

December 22, 1894.

FELLOW SERVANTS — PALACE-CAR PORTER AND TRAINMEN — RIGHTS OF PORTER — CARRIER — STIPULATION AGAINST LIABILITY FOR NEGLIGENCE — EXCESSIVE DAMAGES.

1. A porter of a palace car, whose duties are to collect fares and wait on passengers in such car, and who, by his contract with the car company, and the contract between the latter and the railroad company, is subject to the rules of the railroad company, is not a fellow servant of the engineer and conductor operating the train of which such car is a part.

2. Such porter is entitled to the rights of a passenger, in respect of the careful running and management of the train.

3. A carrier of passengers cannot stipulate against liability for its own negligence.

4. A judgment for $3,000 in favor of a porter of a palace car, for the loss of one eye and the impairment of the other, with the necessary pain, loss of time, and expense incurred, is not excessive.

Appeal from St. Louis circuit court.

Action by George H. Jones against the St. Louis Southwestern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Sam. H. West and Lyne S. Metcalf, for appellant. Virgil Rule and C. P. Johnson, for respondent.

MACFARLANE, J.

I adopt, in substance, the very fair and succinct statement of counsel for appellant: "Plaintiff, at the time of the injury complained of, was in the general employment of the Pullman's Palace-Car Company, as a car porter, by virtue of a contract between him and the said company, by which, among other things, it was stipulated that, in consideration of said employment, he undertook and bound himself `to obey all rules and regulations of the transportation companies, made for the government of their own employés, over whose lines the cars of said Pullman's Palace-Car Company may operate while I am traveling over said lines in the employment and service of said Pullman's Palace-Car Company; and, in consideration of said employment and wages, I hereby, for myself, my heirs, executors, administrators, or legal representatives, forever release, acquit, and discharge any and all such transportation companies from all claims for liability, of any nature or character whatsoever, on account of any personal injury or death to me while traveling over such lines in said employment.' There was also in force at the time of the injury to plaintiff a contract between the Pullman's Palace-Car Company and the defendant, by the terms of which the Pullman Company agreed to furnish sleeping and parlor cars to be used by the railway company for the transportation of passengers; said cars to be satisfactory to and accepted by the railway company. The Pullman Company also agreed to furnish, at its own cost, one or more employés upon each of its cars, whose duty it should be to collect fares for the accommodations furnished in said cars, `and generally to wait upon passengers therein, and provide for their comfort.' It was also agreed between the Pullman Company and defendant that the `said employés of the Pullman Company shall be governed by and subject to the rules and regulations of the railway company which are or may be adopted from time to time for the government of its own employés.' On May 20, 1892, the defendant was engaged in operating its road in the state of Arkansas, and plaintiff was acting as porter of a Pullman car, which was one of a train of passenger cars then operated on defendant's railway in Arkansas. His duty was, at that time, to look after the comfort and safety of such of defendant's passengers as were traveling upon the Pullman car. On said date a collision occurred near the station of Humphreys, Ark., on defendant's railway, caused by the negligence of the conductor and engineer of the train, upon one of the cars of which plaintiff was then acting as porter. The negligence of the conductor and engineer consisted in their failure to obey the orders given them by defendant's agent, to await and pass at that station a train on defendant's road, coming from the opposite direction, which negligence resulted in a collision of said trains, whereby plaintiff, while engaged in his duties as porter, was injured. The referee finds that this injury was to one of his eyes, and was caused by pieces of glass, broken from a window in his car, striking his eye. The injury resulted in a total loss of one eye, and the use of the other was more or less impaired, although the referee does not find that the use of the other eye will be permanently impaired. Plaintiff has been in the hands of competent physicians while being treated for his injury, and has incurred an expense therefor of $100. The referee awards him $3,000 as compensation, and judgment was given for that amount. Defendant appealed."

1. The first inquiry is whether plaintiff had such relation to the offending conductor and engineer as made him a coservant with them, within the rule which would exempt the defendant, as the common master, from liability. That plaintiff was at the time of his injury under the general employment of the Pullman Company, and that his services were paid for by it, is not disputed. Under the general rule, these facts, without qualification, would make him the servant of that company. If he was also a servant of defendant, he was so by virtue of the contract between his general employer and the defendant, which was...