Lindsay v. St. Louis & a Ry. Co.

• Decision Date: 02 July 1915
• Docket Number: No. 13996.,13996.
• Citation: 178 S.W. 276
• Parties: LINDSAY v. ST. LOUIS & a RY. CO.
• Court: Missouri Court of Appeals

178 S.W. 276

LINDSAY v. ST. LOUIS & a RY. CO.

No. 13996.

St. Louis Court of Appeals, Missouri.

July 2, 1915.

Rehearing Denied July 15, 1915.

Appeal from Circuit Court, Lincoln County; Edgar B. Woolfolk, Judge.

"Not to be officially published."

Action by James Lindsay against the St. Louis & Hannibal Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Hostetter & Haley, of Bowling Green, and R. L. Sutton and Avery, Young, Dudley & Killam, all of Troy, for appellant. Pearson & Pearson, of Louisiana, Mo., for respondent.

NORTONI, J.

This is a suit under the wrongful death statute for damages accrued through the alleged negligence of defendant. Plaintiff recovered, and defendant prosecutes the appeal.

Plaintiff sues on account of the death of his wife, which occurred as a result of a collision occasioned by the coupling of cars while she was a passenger on defendant's train at Silex, Mo. It appears plaintiff, together with his wife and Miss Morris, his wife's sister, were en route from their home in Silex to Troy, Mo.; that is to say, they were then boarding defendant's train with that purpose in view. The train involved, an ordinary freight train with a caboose for the carriage of passengers, was due at Silex at 9:27 in the evening, but on this occasion it arrived there about 11:30, being two hours late. Plaintiff called at defendant's station and purchased three tickets from the agent from Silex to Troy about 8:30 o'clock in the evening, contemplating transportation on this particular train, and this fact was well known to the agent. At the time the agent informed plaintiff the train was about two hours late, and immediately thereafter he closed and locked the depot and departed for the night, as was the custom at that place. Silex is a small place of about 300 inhabitants, and it appears that defendant closes and locks its depot and passenger waiting room there about 8:30 o'clock each evening; that is, about an hour before this train arrives when on time. The evidence on the part of plaintiff tends to prove that, when the train comes in, passengers both go upon it and debark therefrom at a point on the railroad track north of the station, wherever the caboose may chance to be, while there Is evidence on the part of defendant that, though such course is frequently pursued, the train pulls down and stops with the caboose opposite the depot, when requested by passengers to do so. About 11:30 o'clock on the night in question, plaintiff, together with his wife and sister-in-law, went to the street crossing near the depot on the arrival of the train and turned thence north, walking between the tracks to the caboose in order to board it. At this time about seven cars of the train, together with the caboose, were standing on the main line of the track, while the locomotive and seven other cars were detached therefrom, setting out, as the trainmen say, a car of fertilizer and picking up a car of live stock. It appears that as many as five passengers, other than plaintiff and his party of three, boarded the train at Silex at the same time, and all of them did so at the same place; that is, in the railroad grounds about 150 feet north of the street crossing at the depot. When plaintiff and his party approached the caboose, several passengers were standing about it in conversation, and plaintiff entered the car with his luggage. After depositing his two grips and overcoat therein, he returned to assist his wife and sister-in-law in boarding the car. He first assisted his wife, and she passed up tie steps of the forward end of the caboose to a position immediately in front of the door about the center of the end of the car, whereupon he likewise assisted Miss Morris, who had attained a position on the second step, when the collision occurred with great force, so as to precipitate Mrs. Lindsay, his wife, to her death under the train.

The evidence is that the jolt of the train which resulted from the making of a coupling was extraordinary in character even for a freight train. Indeed, the force of the collision was so great as to thrust the caboose backwards for as much as 12 feet, according to the evidence on the part of plaintiff, and as much as 6 or 8 feet, according to the evidence of the conductor, who was near by at the time, though not on the same side of the car as plaintiff and his companions.

It is argued that the relation of carrier and passenger did not exist at the time, for that it does not appear plaintiff and his wife were invited by those in charge of the train to go upon the caboose at this point on the track, 150 feet north of the depot. But we are not inclined to accede to this, in view of the facts and circumstances detailed in the evidence. It is said that, as it does not appear the conductor or others in connection with the train directed plaintiff and his wife to board the caboose at this point, neither an invitation nor an acceptance of the passenger appears. It is true that the two principal elements essential to establish the right of a passenger are: First, an undertaking on the part of the person to travel in the conveyance provided by tie carrier; and, second, an acceptance by the carrier of the person as a passenger. But whether either or both of these elements exist is ordinarily a question for the jury, the, moreover, the acceptance on the part of the carrier need not be direct or express, but may be and usually is implied from the facts and circumstances attending the particular situation. See 2 Hutchinson on Carriers (3d Ed.) § 997. Here, though the train was a freight, it was provided by defendant for the carriage of passengers, and it appears the agent sold tickets to plaintiff for himself, wife, and sister-in-law for the particular train. At the time of the purchase of the tickets, the agent instructed plaintiff that the train was two hours late, closed, locked the depot, and departed for the night. It appears, too, that, generally speaking, the depot was closed about an hour before the arrival of this train even when on time, and, of course, passengers were thus denied the usual accommodation to await its arrival. Witness after witness testified on the part of plaintiff that defendant always accepted passengers on this train at such point on its track north of the depot as the caboose happened to stop; that is, by transporting them after having so boarded the train. And, indeed, it appears that it received several passengers there other than plaintiff and his party on this occasion. Also it seems to be conceded, for defendant's witnesses, including the conductor, testified to the fact, and no one denies it, that passengers disembarked on the track north of the depot where the caboose stopped on the train's coming into town. The evidence is this train usually did some switching at Silex, and the conductor and others on the part of defendant say that, after the switching was finished, it was the practice for defendant to stop the caboose at the depot for the accommodation of...