McKaig v. Kansas City Terminal Ry. Co.

• Citation: 355 S.W.2d 409
• Decision Date: 05 February 1962
• Docket Number: No. 23506,23506
• Parties: Anna McKAIG, Appellant, v. KANSAS CITY TERMINAL RAILWAY COMPANY, a Corporation, Respondent.
• Court: Court of Appeal of Missouri (US)

Page 409

355 S.W.2d 409

Anna McKAIG, Appellant, v. KANSAS CITY TERMINAL RAILWAY COMPANY, a Corporation, Respondent.

No. 23506.

Kansas City Court of Appeals, Missouri.

Feb. 5, 1962.

Swofford, Smith & Waisblum, Kansas City, for appellant.

William M. Stapleton, W. H. Bates, Kansas City, for respondent.

HUNTER, Presiding Judge.

This is a suit by appellant, Anna McKaig, against respondent, Kansas City Terminal Railway Company, for damages in the sum of $25,000 for personal injuries suffered by appellant who tripped and fell when negligently directed into an unsafe place by a redcap employee of respondent.

As a result of the jury trial appellant received a verdict and judgment for $7,500. Thereafter, the trial court sustained respondent's motion for judgment in accordance with its motion for a directed verdict at the close of all the evidence, set aside the verdict and judgment, and entered judgment for respondent. Appellant appealed requesting that her verdict and judgment for $7,500 be reinstated.

On this appeal we are presented a single question; namely, whether the provisions of the railroad passes issued to appellant barred her recovery.

The pertinent facts are undisputed and are as follows:

Appellant is a seventy-two year old widow who was planning a railroad trip from her home in Denver, Colorado to Indianapolis, Indiana to visit a relative. This necessitated passage on the Union Pacific Railroad to Kansas City, Missouri, and transfer there to the Wabash Railroad on east; and eventually on the New York Central Railroad to complete her trip.

Appellant applied to the Union Pacific Railroad for free passes for the trip from Denver to Indianapolis. It sent her a series of passes, one for each of the mentioned railroads. She commenced her journey by chair car on the Union Pacific, arriving at the Kansas City depot the 14th of December, 1958. Before leaving the train she asked the proter of the car to get her a redcap to assist her to the Wabash train and to take care of her luggage. A redcap was procured and she engaged him to take her and her luggage to the Wabash train which was waiting at another siding at the depot. She had made the trip before and had always engaged a redcap to give her that assistance.

The redcap took her by escalator up to the main level of the depot and back down again to the track level. The first attempt to reach the Wabash train was by way of a blocked passage. The redcap had her follow him to another passage, then 'suddenly he says, 'Lady, here's your car right through there (indicating).'' The lighting and visibility were poor. She went as directed through a narrow passage between two baggage trucks tripped and fell over the unseen protruding handle of one of them and was injured.

The pertinent language of the two passes, which appellant had signed, is:

Union Pacific Pass: 'The user assumes all risk of injury to person and to property and of loss of property, whether by negligence or otherwise, and absolves any company honoring this pass from all liability therefor.'

Wabash Pass: 'The user assumes all risk of death, injury, loss or damage to the user's person or property, whether due to negligence or otherwise, and neither the user nor any other person whatsoever, shall have any right or claim against the issuing company, its servants or agents, or any company or railway on whose lines or trains this pass may be honored, or its servants or agents, in respect or arising out of any such death, injury, loss or damage.'

Respondent owns and operates the Union Station at Kansas City, Missouri, together with the tracks and related railroad facilities necessary for a railroad terminal. By admission, respondent is and was engaged in the operation of railway facilities in and about Kansas City including the Terminal and Union Depot facilities at Kansas City and the track level, platforms, common walks and passageways used for the loading and unloading of various trains, passengers, bags and equipment.

Respondent is owned by twelve trunk line railroads which enter Kansas City, Missouri, and those railroads, by contract have the 'right and privilege' to operate their passenger trains over the tracks of Kansas City Terminal Railway Company and into and out of the Union Station, and of 'using and enjoying' the Union Station for their railroad passenger business for which they pay respondent's expenses in operating its facilities. Both the Wabash Railroad Company and the Union Pacific Railroad Company are among the owners of the respondent and are parties to the mentioned contract.

Also admitted is that respondent had in its employment certain agents, servants, employees and redcaps, including the mentioned one, available for hire to assist persons in and about the Terminal and Union Depot premises and facilities and in moving persons, luggage and equipment to and from the various trains, platforms, passageways and common walks on and about the premises. This particular redcap at the time in question was carrying out his normal duties on behalf of his employer.

Certain of the provisions of the Local and Joint Passenger Tariff of the Interstate Commerce Commission provide: 'The carriers parties to this tariff do not undertake to furnish station porter (red-cap) service generally, or at all stations, or at all times at stations where such service is furnished. When and where and to the extent that station porter (red-cap) service may be furnished by the carriers parties hereto, the charges will be * * * Kansas City (Union Depot) 15 cents for each piece so handled.'

Every redcap at the Union Station at Kansas City was required to charge 15 cents per parcel and at the end of each day turn that money over to respondent employer. Tips could be retained by the redcap.

Before reaching the precise question upon which this decision must turn it is helpful to examine the case of Brown v. Terminal Railroad Association of St. Louis, Mo.App., 298 S.W.2d 471, cited relied upon by all the parties and with which decision we agree. Brown was riding as a passenger on a free pass on the Wabash Railroad train when it was struck by a Terminal switching engine whose engineer negligently failed to heed a stop signal. Brown sued Terminal for his resultant injuries. The provisions on the Wabash pass in the Brown case are identical with those on the Wabash pass now before us. In holding that the provisions of the free pass prevented recovery by Brown the St. Louis Court of Appeals said: 'Plaintiff must be held to have authorized Wabash to contract with Terminal for the use of the latter's facilities, and to have agreed that the provisions of the pass should protect Terminal to the same extent that they protect Wabash. The limitation of liability provided for in the pass extends to all railroads and facilities contributing to the accomplishment of the transportation as to all risks taken by plaintiff as a passenger on any part of the whole journey. When plaintiff boarded the Wabash train at Decatur, Illinois to be carried to St. Louis, Missouri he must be held to have agreed to transportation by Wabash not only to the end of the Wabash tracks but also over and across Terminal tracks and bridges and into and upon Terminal stations and facilities and thus and thereby to his destination in exactly the same manner as if the tracks, bridges, etc., were the property of Wabash. Plaintiff undertook to be carried the whole way at his own risk, not only over Wabash tracks but also over the tracks of any agency or instrumentality of Wabash. The language of the pass is broad. It contains an unrestricted assumption of all risk of injury whether due to negligence or otherwise, coupled with an express agreement that the user of the pass shall have no right or claim arising out of any such injury against the issuing company, Wabash, its servants or agents, or any railway on whose lines or trains the pass may be honored, or its servants or agents.'

The Brown decision, supra, reviewed the law relating to Terminal Companies, such as respondent, and held, '* * * Terminal was an 'agent' of the issuing carrier within the meaning of the language of the pass', citing numerous decisions. Thus, Terminal is the agent of the proprietary lines in taking a passenger and her luggage to and from trains of proprietary line using Terminal facilities. See, Treadway v. Terminal R. R. Ass'n of St. Louis, 231 Mo.App. 1028, 84 S.W.2d 143, 146.

With these principles in mind we approach the precise contention of appellant, namely, that the mentioned provisions of the railroad passes should not be construed to include exemption from liability for negligence resulting from paid for redcap service, and constitute no defense.

Both appellant and respondent report their research has not located any decision concerning the applicability of free pass covenants not to sue for injury occasioned by the negligent act of a redcap employed by the injured person to assist him with his baggage. In an excellent brief appellant's counsel have illuminated her basic contention by emphasizing that Mrs. McKaig's case against Terminal is not based upon Terminal's negligence in providing facilities or services which were furnished plaintiff as a part of her free transportation; not based on negligence of Terminal in allowing the baggage trucks to obstruct the platform under circumstances of insufficient lighting; but rather upon the active negligence of a redcap hired by Mrs. McKaig by separate contract, and upon whom she relied in directing her step by step to the point of casualty. Her counsel contends this contract of employment between her and the redcap for a valuable consideration is outside of and apart from the services the Union Pacific and the Wabash had agreed to provide through the issuance of the free passes. They further argue that in entering into this agreement Terminal was not honoring a pass issued by Wabash and was not acting as an agent of...