Scrivner v. Missouri Pac. Ry. Co.

• Citation: 169 S.W. 83,260 Mo. 421
• Decision Date: 02 July 1914
• Docket Number: No. 15964.,15964.
• Parties: SCRIVNER v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

169 S.W. 83

260 Mo. 421

SCRIVNER v. MISSOURI PAC. RY. CO.

No. 15964.

Supreme Court of Missouri.

July 2, 1914.

Rehearing denied July 14, 1914.

1. CARRIERS (§ 315)—PASSENGERS—INJURIES —PLEADING—PROOF—VARIANCE.

In an action by one injured while riding in a freight car, the railroad company pleaded a contract requiring plaintiff to ride in the caboose, and plaintiff by his reply attempted to avoid the effect of the contract by setting up that he was a minor at the date of its execution; that it was in violation of the statutes of the state where made; that no order from the board of railroad commissioners permitting such contract had been obtained; and that it was without consideration. Held, that evidence tending to show that plaintiff was in the freight car to protect his property from injury was inadmissible, not having been pleaded.

2. PLEADING (§ 177)—REPLY—ADMISSIONS.

As plaintiff replied first by a general denial, his plea of matters in confession and avoidance did not admit that there was a valid contract.

3. TRIAL (§ 251)—INSTRUCTIONS—APPLICABILITY TO PLEADINGS.

The instructions should not be wider than the scope of the pleadings, whatever range the evidence may have taken.

4. APPEAL AND ERROR (§ 302)—PRESENTATION OF GROUNDS OF REVIEW IN COURT BELOW —NECESSITY.

Where the court on its own motion modified plaintiff's instruction, the instruction is that of the court, and defendant, to review the propriety of the instruction, must in his motion for new trial assign as error the giving of instructions by the court.

5. EVIDENCE (§ 20)—JUDICIAL NOTICE.

It is a matter of common knowledge that it is more hazardous to ride in a freight car loaded with stock and merchandise than in the caboose of the same train.

6. CARRIERS (§ 247) — CARRIAGE OF PASSENGERS —CONTRACTS—VALIDITY.

Where a contract between a railroad company and a shipper of stock and household goods required the shipper to ride at all times in the caboose, such restriction was reasonable and valid, and the shipper, when riding in the freight car contrary to the contract, was not a passenger and could not recover for injuries occasioned by an unusually hard coupling.

7. CARRIERS (§ 254)—CARRIAGE OF PASSENGERS —CONTRACTS—CONSTRUCTION.

That a contract between a railroad company and a shipper of household goods and live stock required the shipper to feed and water the stock does not avoid other provisions of the contract requiring the shipper or drover to ride in the caboose at all times the train is in motion.

8. CARRIERS (§ 314)—CARRIAGE OF PASSENGERS —CONTRACTS—PLEADING.

In an action by a shipper of live stock injured while riding in the freight car instead of the caboose, waiver of the contract requirement with the railroad company that he should ride in the caboose must be pleaded.

In Banc. Appeal from Circuit Court, Jackson County; Thos. J. Seehorn, Judge.

Action by Frank Scrivner against the Missouri Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

Martin L. Clardy, of St. Louis, and Edw. J. White, of Kansas City, for appellant. Boyle, Guthrie, Howell & Smith and Joseph S. Brooks, all of Kansas City, for respondent.

GRAVES, J.

Plaintiff, whilst shipping some horses and some farm and household goods from Council Grove, Kan., to Carbondale, Kan., was injured en route near the station of Admire on February 22, 1908. He had loaded the car the day previous and had signed up a written contract entitling him to ride on the train with the car of stock and goods. He and his mother had remained in the car over night before it left Council Grove on the morning of February 22d, at about 7 o'clock. The accident occurred about 9 o'clock of that morning. The plaintiff and his mother were in the freight car, and, just after the train left Admire, the car ahead of plaintiff's car left the track, and plaintiff's car was forced from the track, toppling over, and badly crushing his right leg below the knee. The injuries were such that amputation had to be resorted to, and, owing to the appearance of septic poisoning, a second amputation was required. At the date of accident the plaintiff lacked one day of being 21 years of age. The negligence relied upon is thus stated in the petition:

"That on or about the 22d day of February, 1908, plaintiff was a lawful passenger on one of defendant's west-bound trains, running over and along aforesaid line; that while said train was passing through the said town of Admire, Kan., or running a short distance west thereof, and while plaintiff was a passenger on said train, the defendant carelessly and negligently caused said train to be wrecked, and the car in which plaintiff was riding to be derailed and thrown from its tracks and upon the embankment of said track, and thereby caused plaintiff to be injured as hereinafter set out."

There is contention over the legal effect of the pleadings, and the further pleadings had best be fully set out. For its answer the defendant said:

"Defendant, for answer to plaintiff's petition, leave of court being had to file the same, admits that it is now, and was at all the times in said petition mentioned, a corporation and engaged in the operation of a railroad; admits that, on or about the date in said petition mentioned, plaintiff was being transported on one of defendant's trains; and admits that near the town of Admire, Kan., on or about the date in said petition mentioned, an accident occurred, whereby plaintiff received certain injuries; but denies that said accident was caused by any negligence or carelessness on the part of this defendant; and also denies that plaintiff's injuries were of the character or to the extent in said petition alleged.

"Further answering, defendant denies each and every allegation in plaintiff's petition contained which is not herein expressly admitted to be true.

"Further answering, defendant says that on the 21st day of February, 1908, said plaintiff shipped over defendant's line of railway from Council Grove, Kan., to Carbondale, Kan., four horses and a lot of household goods; that on said 21st day of February, 1908, plaintiff and defendant entered into a written agreement, which provided that plaintiff might accompany said property shipped as aforesaid, but that he should remain in the caboose car attached to the train in which was the car containing said property while said train was in motion; but defendant says that plaintiff, in violation of said agreement, did not remain in the caboose car attached to said train, but undertook to ride and did ride in the freight car containing said property; and that if plaintiff had remained in the caboose car, as required to do by the terms of said contract, he would not have sustained any injury.

"Further answering, defendant says that the injuries sustained by plaintiff in the accident above mentioned were the result of his own negligence and carelessness, which directly contributed thereto.

"Further answering, defendant says plaintiff, by riding in said freight car instead of said caboose, in violation of the terms of his contract and in violation of the instructions of the employés of the defendant in charge of said train, assumed the risk of any accidents or injuries that might result to him from so doing.

"And now, having fully answered, defendant asks to be discharged, with judgment for its costs."

To this the plaintiff replied thus:

"Now comes plaintiff and by leave of court files herein his amended reply and says:

"(1) He denies generally each and every allegation in defendant's answer made or contained.

"(2) Plaintiff further says that said pretended contract referred to in said answer is null and void for the reason that, at the time of its pretended execution, plaintiff was a minor; and that said pretended contract is in violation of the statute of the state of Kansas, and the decisions of the Supreme Court of the state of Kansas, where said pretended execution and delivery of said pretented contract were made. By section 5987 of the General Statutes of Kansas of 1901 it is provided that no railroad company shall be permitted, except as otherwise provided by regulation or order of the board of railroad commissioners, to charge or limit its common-law liabilities as a common carrier, which statute, as construed by the Supreme Court of Kansas, forbids the marking by any railroad company of any contract which shall relieve such company from liability for loss occurring through its misconduct or negligence. No order or regulation of the board of railroad commissioners of the state of Kansas has ever been made modifying or affecting the provisions of said statute.

"(3) Plaintiff further says that said pretended contract was without consideration; that the defendant had no rate properly published, and offered plaintiff no rate, and advised plaintiff of no rate other than that charged plaintiff for the shipment which was made at the time of the pretended execution of said pretended contract, and plaintiff had no knowledge or notice of any other rate."

The trial resulted in a judgment for plaintiff in the sum of $15,000, from which the defendant has appealed. Matters of detail will be left to appropriate propositions in the course of the opinion. Matters urged in the second and third paragraphs of the reply were in effect abandoned below and are not urged here in the briefs.

I. Of the several questions presented by the record, the following is of some importance: The court permitted the plaintiff, over proper and pointed objections of the defendant, to show that, whilst his car was being switched into the train at Council Grove, it was so forcibly struck by another car that the partition which plaintiff had erected between the goods and the horses was broken and knocked down, and that for this reason he was compelled to ride in the stock car rather than the caboose. Defendant objected to this testimony, and urged that it was improper...