Scrivner v. Missouri Pacific Railway Co.

• Decision Date: 14 July 1914
• Citation: 169 S.W. 83,260 Mo. 421
• Parties: FRANK SCRIVNER v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

169 S.W. 83

260 Mo. 421

FRANK SCRIVNER v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant

Supreme Court of Missouri

July 14, 1914

Appeal from Jackson Circuit Court.-- Hon. Thomas J. Seehorn, Judge.

Reversed.

Martin L. Clardy and Edw. J. White for appellant.

(1) Under the well-established rule of pleading, that where specific conditions are relied upon to avoid a contract, the evidence must be confined to the conditions pleaded and that the proof of other conditions is prejudicial, after setting up the illegality of the condition of the shipping contract for the two specific reasons that the same was not authorized by the Board of Railroad and Warehouse Commissioners of Kansas and that the same was without consideration, it was reversible error to permit the plaintiff to testify that the stock car had been jolted and jerked so hard before the journey commenced that it was necessary for him to ride in the car to take care of the stock and furniture, as this evidence was outside of the issues made by the pleadings and the defendant was not advised by the pleadings that such an issue would be raised.England v. Denham,93 Mo.App 13;Dwyer v. Rohan,99 Mo.App. 120.Under the settled rule of practice in this State, where the answer sets up new matter to defeat the cause of action relied upon in the petition, the reply must affirmatively plead all new matter to avoid the defense set up and in failing to do so the plaintiff confesses the defense set up in the answer.Huber Mfg. Co. v. Hunter,87 Mo.App. 50;State ex rel. v. Rau,93 Mo. 126;Holke v. Herman,87 Mo.App. 125;Dawson v. Dillon,26 Mo. 395;Price v. Perry,1 Mo. 386;McCutchen v. Sigerson,34 Mo. 280;Young v. Schofield,132 Mo. 650;State v. Grimsley,19 Mo. 171;Hamilton v. Armstrong,120 Mo. 597.(2) Under the law of Kansas and under the law of Missouri, the shipper of live stock is required to remain in the caboose, where the shipping contract so provides, and the employees of the company have a right to rely upon the performance of the contract and the company owes him no duty, except not to injure him purposely, while he is riding in the stock car with his stock.Fusselman v. Railroad,139 Mo.App. 198;Bruce v. Railroad,136 Mo. 204;Aufdenberg v. Railroad,132 Mo. 565;Youmans v. Railroad,143 Mo.App. 393;Railroad v. Sparks, 55 Kan. 288.

Boyle, Guthrie, Howell & Smith and Joseph S. Brooks for respondent.

(1) It was not error to permit respondent to prove "that the stock car had been jolted and jerked so hard before the journey commenced that it was necessary for him to ride in the car to take care of the stock and furniture."He was entitled to prove such facts under the allegations of the petition and under the general denial of the answer, in his reply, which besides was a denial of defendant's pleas of contributory negligence and assumption of the risk.Brubaker v. Electric Light Co.,130 Mo.App. 444;Cushing v. Powell,130 Mo.App. 576;Bolton v. Railroad,172 Mo. 102;Bruce v. Railroad,136 Mo.App. 207;Railroad v. Beebe,174 Ill. 13.(2) The conductor could consent that he ride in the car with the stock in order "to take care" of them.This was plaintiff's obligation under the contract.(3) The evidence of plaintiff showed that the partitions between the stock and the goods were down and that the plaintiff remained in the car to keep the goods from slipping over towards the horses.This he was doing between Council Grove and Admire.Bolton v. Railroad,172 Mo. 92;Railroad v. Beebe,174 Ill. 13.(4) In accepting passengers upon a freight train, a railroad company assumes toward them an obligation to exercise the high degree of care it is bound to exercise in carrying passengers on regular passenger trains.Russell v. Railroad,125 Mo.App. 447;Mitchell v. Railroad, 132 Mo.App. 149.

GRAVES, J. Brown, J., concurs in result.

OPINION

In Banc

GRAVES J.

Plaintiff, whilst shipping some horses and some farm and household goods from Council Grove, Kansas, to Carbondale, Kansas, 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 22nd, at about seven o'clock.The accident occurred about nine 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 the right leg between 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 twenty-one years of age.The negligence relied upon is thus stated in the petition.

"That on or about the 22nd day of February, 1908, plaintiff was a lawful passenger on one of defendant's westbound trains, running over and along aforesaid line; that while said train was passing through the said town of Admire, Kansas, 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, Kansas, 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, Kansas, to Carbondale, Kansas, 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 employees 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 pretended 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 change or limit its common-law liabilities as a common carrier; which statute as construed by the Supreme Court of Kansas forbids the making 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...