Kansas City Southern Ry. Co. v. Willsie

• Decision Date: 07 July 1915
• Docket Number: 4423.
• Citation: 224 F. 908
• Parties: KANSAS CITY SOUTHERN RY. CO. v. WILLSIE. [1]
• Court: U.S. Court of Appeals — Eighth Circuit

224 F. 908

KANSAS CITY SOUTHERN RY. CO. v. WILLSIE. ^[1]

No. 4423.

United States Court of Appeals, Eighth Circuit.

July 7, 1915

James B. McDonough, of Ft. Smith, Ark. (S. W. Moore, of Kansas City, Mo., on the brief), for plaintiff in error.

James D. Head, of Texarkana, Ark., for defendant in error.

Before SANBORN and CARLAND, Circuit Judges, and TRIEBER, District judge.

CARLAND Circuit Judge.

The parties to this writ of error will be named as at the trial. On September 25, 1913, the plaintiff walked from his home in Little River county, Ark., to a station on defendant's of taking passage on a local freight train for Wade, another station about 9 o'clock a.m., at about the time the train was running up. The train was standing at the middle of the dept. The caboose was south of the depot. The train was a local freight which carried passengers. Plaintiff had made several trips to Wade before on this same train, had paid cash fare at those times, and had money to pay his fare on this occasion. Plaintiff was told by the agent prior to the present proposed trip that defendant did not sell tickets to Wade. Plaintiff was standing on the station platform which was made of gravel waiting for the caboose to pull up so that he could get on. He was on the west side of the track about seven or eight feet distant. On the other occasions that he had taken this same train the caboose had stopped here.

While so standing, a brakeman of the defendant employed on this same train placed a torpedo on one of the rails of the track on which the train stood and under one of the car wheels. There was an explosion when the car moved soon thereafter which threw a piece of gravel or tin into the left eye of plaintiff knocking him down and causing injury. The brakeman testified that he took the torpedo from the platform and that it looked as if it had been exploded; that he placed it on the track to see if it had been exploded; that he did not place it on the track in connection with his work on the train. At the close of all the evidence counsel for the defendant made a motion for a directed verdict in its favor. The motion was overruled and an exception taken. There was a verdict and judgment for plaintiff. It is insisted by counsel for defendant that the plaintiff under the evidence was not a passenger. We think the weight of authority is decidedly in favor of the proposition that when the plaintiff repaired to the station of the defendant at Winthrop under the circumstances detailed in the evidence in good faith intending to become a passenger, and having the money to pay his fare, he in law and fact became a passenger and was entitled to protection as such. Chicago, Rock Island & Pacific Railroad Co. v. Stepp, 164 F. 785, 90 C.C.A. 431, 22 L.R.A. (N.S.) 350 (8th Circuit); Moore on Carriers, vol. 2 (2d Ed.) Secs. 8 and 9; 2 Cooley on Torts (3d Ed.) p. 1364; 3 Thomp.Neg. 2638; 2 Hutchinson, Carriers (3d Ed.) 1006, 1009; Grimes v. Pennsylvania Co (C.C.) 36 F. 72; Riley v. Vallejo Ferry Co (D.C.) 173 F. 331; Atlantic City Ry. Co. v. Clegg, 183 F. 216, 105 C.C.A. 478; Railway Co. v. Hutchinson, 101 Ark. 424, 142 S.W. 527; Railroad Co. v. Watson, 102 Ark. 499, 144 S.W. 922; Metcalf v. Railway Co., 97 Miss. 455, 52 So. 355, 28 L.R.A. (N.S.) 311; 6 Cyc. 536; Krantz v. Railway Company, 12 Utah, 104, 41 P. 717, 30 L.R.A. 297; Harris v. Stevens, 31 Vt. 79, 73 Am.Dec. 337.

As bearing upon the question of purchasing a ticket, Kirby's Digest, Sec. 6613, reads as follows:

'All passengers who may fail to procure regular fare tickets shall be transported over all railroads in this state at the same rate and price charged for such tickets for the same service.'

In Railway Company v. Kilpatrick, 67 Ark. 47, 54 S.W. 971, and Railroad v. Blythe, 94 Ark. 153, 126 S.W. 386, 29 L.R.A. (N.S.) 299, it is decided that, in the absence of any rule requiring the purchase of a ticket before entering the train, the passenger may pay fare upon the train and is entitled to the rights of a passenger if he intends to pay his fare when called upon. There is no evidence in the record that such a rule existed in the present case. The trial court left it to the jury to say whether under the circumstances the plaintiff was a passenger at the time of his injury. We think in so doing the trial court was as favorable to the defendant as it could ask.

It is next insisted that the evidence showed that in placing the torpedo upon the track the brakeman was not engaged in the performance of any business of the defendant; therefore his act was beyond the scope of his employment and the defendant is not liable therefor. The present state of the law in relation to the question presented is well stated in section 26, vol. 2, Moore on Carriers, p. 1148, as follows:

'Although the generally accepted doctrine of the courts in many cases, which seem to have been determined mainly from the responsibilities attaching to the relation of principal and agent or master and servant, has been that a carrier of passengers is liable for the tortious acts of its servants, even when willful or malicious, if done within the scope of their employment, in the latest and best considered cases and writings upon this subject the distinctions which attend the doctrine of respondeat superior are held to be unimportant in view of the absolute nature of the carrier's duty to protect the passenger from the assaults and insults of its own servants during the transit, or, if considered, are applied with a very strong bias against the master, even where the servant's acts appear to be aggressive, wanton, and malicious. The more acceptable rule now seems to be that a common carrier is liable to any one sustaining the relation of passenger to it for an injury resulting from any acts of its servants or employes, whether willful and malicious or not, and even though such acts are not done in the course or within the scope of the servants' or agents' employment; the rule that the master is not liable for injury resulting from the willful and malicious acts of his agents, not done within the scope of their employment, is not applicable when the injury is inflicted upon a passenger by the carrier's agents or servants. The carrier is liable in such cases because the act is violative of the duty and a breach of the obligation it owes through the servant to the passenger, and not upon the idea that the act is incident to a duty within the scope of the servant's employment; and it is manifestly immaterial that the act may have been of private retribution on the part of the servant, actuated by personal malice toward the passenger and having no attribute of service to the carrier in it. The rule in England and in some of the states in this country is to the contrary, however, and it is held that no liability is incurred by the carrier for an injury to a passenger by the willful or malicious tort of its servant, unless the act was done while he was acting within the scope of his employment.'

The above language is fully sustained by the authorities cited in support thereof. In addition we cite the following: Railway Company v. Hutchinson, 101 Ark. 424, 142 S.W. 527; 6 Cyc. 600, 601; Neville v. Southern Ry. Co., 126 Tenn. 96, 146 S.W. 846, 40 L.R.A. (N.S.) 995; Krantz v. Railway Co., 12 Utah, 104, 41 P. 717, 30 L.R.A. 297; Haver v. Railway Co., 62 N.J.Law, 282, 41 A. 916, 43 L.R.A. 84, 72 Am.St.Rep. 647; Georgia R. & B. Co. v. Richmond, 98 Ga. 495, 25 S.E. 565; S.F. & W.R. Co. v. Quo, 103 Ga. 125, 29 S.E. 607, 40 L.R.A. 483, 68 Am.St.Rep. 85; Railway Co. v. Cooper, 6 Ind.App. 202, 33 N.E. 219; Railway Co. v. Divinney, 66 Kan. 776, 71 P. 855; O'Brien v. Transit Co., 185 Mo. 263, 84 S.W. 939, 105 Am.St.Rep. 592; Keene v. Lizardi, 5 La. 431, 25 Am.Dec. 197; Williams v. P.P. Car Co., 40 La.Ann. 417, 4 So. 85, 8 Am.St.Rep. 538; Johnson v. Railway, 130 Mich. 453, 90 N.W. 274; Conger v. Railway, 45 Minn. 207, 47 N.W. 788; Railway Co. v. Sanderson, 99 Miss. 148, 54 So. 885, 46 L.R.A. (N.S.) 352; Maleck v. Railway, 57 Mo. 17; Railway Co. v. Luther, 40 Tex.Civ.App. 517, 90 S.W. 44; Railway Co. v. Dean, 98 Tex. 517, 85 S.W. 1135, 70 L.R.A. 943; Fick v. Railway Co., 68 Wis. 469, 32 N.W. 527, 60 Am.Rep. 878; Daniel v. Railway, 117 N.C. 592, 23 S.E. 327, 4 L.R.A. (N.S.) 485; 3 Thomp. Neg. Secs. 3190, 3191; Tate v. Railway (Ky.) 81 S.W. 256; Railroad Co. v. Batchler, 32 Tex.Civ.App. 14, 73 S.W. 981; Railroad Co. v. Bowlin (Tex. Civ. App.) 32 S.W. 918; Savannah, etc., R. Co. v. Bryan, 86 Ga. 312, 12 S.E. 307, 22 Am.St.Rep. 464; Railway Co. v. Savage, 110 Ind. 156, 9 N.E. 85; Railroad Co. v. Dowgiallo, 82 Ark. 289, 101 S.W. 412; Terre Haute Railway Co. v. Jackson, 81 Ind. 19; 4 Elliott, Railroads, Sec. 1638; Barrow S.S. Co. v. Kane (C.C.A. 2) 88 F. 197, 31 C.C.A. 452; N. J. Steamboat Co. v. Brockett, 121 U.S. 637, 7 Sup.Ct. 1039, 30 L.Ed. 1049; Railroad Co. v. Jopes, 142 U.S. 18, 12 Sup.Ct. 109, 35 L.Ed. 919; Clancy v. Barker et al., 131 F. 161, 66 C.C.A. 469, 69 L.R.A. 653; 2 White, Personal Injuries on Railroads, Sec. 736; Dwinelle v. N.Y.C. & H.R.R. Co., 120 N.Y. 117, 24 N.E. 319, 8 L.R.A. 224, 17 Am.St.Rep. 611; Hayne v. Union Street Railway Co., 189 Mass. 551, 76 N.E. 219, 3 L.R.A. (N.S.) 605, 109 Am.St.Rep. 655; Harmon v. Flintham (C.C.A. 6) 196 F. 635, 116 C.C.A. 309.

Counsel for the defendant cite Goodloe v. Railroad, 107 Ala. 233, 18 So. 166, 29 L.R.A. 729, 54 Am.St.Rep. 67. This case is severely criticized by Mr. Thompson in his work on Negligence (volume 3, Sec. 3190), and in a subsequent case Birmingham Ry. & Electric Co. v.

Baird 130 Ala. 334, 30 So. 456, 54 L.R.A. 752, 89 Am.St.Rep. 43, the Supreme Court of Alabama practically overruled the case of Goodloe v. Railroad, in so far as the question now before the court is...