Shafer v. St. Louis, San Francisco Railway, Company
| Decision Date | 18 January 1919 |
| Citation | 208 S.W. 145,201 Mo.App. 107 |
| Parties | J. L. SHAFER, Respondent, v. ST. LOUIS, SAN FRANCISCO RAILWAY, COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Jasper County Circuit Court.--Hon. J. D. Perkins, Judge.
AFFIRMED.
Case reversed.
Frank L. Forlow for appellant.
R. M Sheppard for respondent.
Suit for personal injuries in which defendant appeals from an adverse judgment. The question is not as to plaintiff's injury but as to defendant's libility therefore and incidentally as to whether the instructions given submit defendant's liability on a proper theory.
The immediate cause of plaintiff's injury was that he was assisting a brakeman of defendant railroad in unloading a barrel of Coca Cola, weighing some four hundred and fifty pounds, from a freight car onto the platform at the station of Wardell, Missouri, and in so doing the brakeman failed to support his side of the barrel letting it slip and fall, catching plaintiff's hand against the car. This act of the brakeman is alleged to have been negligent and careless. The train in question was a mixed train and had a few minutes previous stopped at the depot to let off passengers and unload local freight. The plaintiff was one of the passengers who got off the coach or caboose and the car from which this freight was being unloaded was the next car forward. When plaintiff had alighted on the platform he walked forward toward the depot and was about to pass the door of the freight car from which the brakesmen were unloading the barrel. One brakeman was in the freight car and the other on the platform with the barrel at the door ready to be lifted out. The brakeman on the platform requested plaintiff, who was a brakeman at a nearby town and well acquainted at Wardwell, to help him unload the barrel which plaintiff did an was injured as stated in so doing.
The petition is so drawn as not to indicate with clearness on what theory of defendant's duty to plaintiff he bases a right of recovery. Since negligence is a violation of a duty or obligation owed by the defendant t othe plaintiff, it is important to know what is the nature of such duty or obligation and why it exists. [20 R. C. L,. section 7, page 10; 29 Cyc. 419; Bindbeutal v. Street Railway Co., 43 Mo.App. 463, 470.]
One cannot be said to have been guilty of negligence in the legal sense unless he has failed to do that which it was his duty to have done or which, under the circumstances, he could reasonably have been expected to do [Boettger v. Iron Co., 124 Mo. 87, 101, 27 S.W. 466.]
The petition designates the relationship of plaintiff to defendant at the time of this injury as that of a passenger and says that while plaintiff was yet a passenger he undertook to assist defendant's servants and employee to unload this freight. This, of course, is on the theory that plaintiff had not yet left defendant's platform and depot grounds after alighting from the train and, in the instructions given, the jury was told that the relationship and liability of carrier and passenger continued as long as the passenger was reasonably leaving the train and premises. The petition also alleges that plaintiff assisted in unloading this freight at the special instance and request of defendant's agent, servant and employee, not designating which or whom except that it further alleges that in so assisting in this work, plaintiff did so as directed by the said agent, servant and employee, and while so doing the defendant's agent servant and employee negligently turned loose the barrel they were lifting out of the car. Nowhere does plaintiff state that he became an employee or servant of the defendant in doing this work.
The instructions given for plaintiff follow the petition in these respects requiring the jury to find, among other things, that plaintiff was a passenger on defendant's train and was on the platform provided for passengers to alight when he was requested by defendant's agent and servant to assist in unloading the barrel; and further defining the degree of care owned by plaintiff to defendant, if he was a passenger as defined by the instructions as being the highest degree of care. In plaintiff's brief and argument, however, he takes the dual position that plaintiff was when injured a passenger and entitled to care and protection as such and that he became a fellow servant with the brakeman in unloading the barrel and that defendant is liable for the negligent act of his fellow servant.
At the trial the question most mooted was whether the conductor of this mixed train knew of the brakeman's request to plaintiff and by silence permitted plaintiff to comply with such request. Plaintiff's evidence is that the brakeman on the platform first requested one Malone (calling him "big boy"), who was standing nearby, to help him lift the barrel down and that Malone said there is a "big boy" (meaning plaintiff) get him to help; that the brakeman then said to plaintiff, "Help me lift this barrel down" and plaintiff did so. Plaintiff says the conductor was standing near and could easily have heard and seen what was said and done, but says that such conductor was getting some way bills signed and in no way indicated that he did hear what was said other than being in hearing distance. The conductor testified that he was busy with the way bills; did not hear the brakeman's request and knew nothing of the matter till it was over and plaintiff's fingers hurt. The whole incident, it seems, only lasted a moment. All agree that the conductor, if he did hear and see what was said and done, paid no attention by word or act till the accident happened.
The only purpose of this evidence, and this is shown by the instructions as well, was to show that if the brakeman had no authority to make plaintiff an employee by requesting him to assist in unloading this freight, the conductor's knowledge and acquiescence had such effect. To this extent at least the case was tried on the theory that plaintiff was an employee as well as a passenger.
Plaintiff's principal instruction is clearly erroneous on this theory, for it clearly permits, if it does not that all the jury need find is that the plaintiff was requested to do this work by defendant's agent, servant and employee who assisted him in the work and directed him how to do ie, to-wit: the brakesman. In other words the instruction does not require a finding that the conductor knew of and permitted the plaintiff to assist in this work at the brakeman's request.
Plaintiff's second instruction, telling the jury that plaintiff was a passenger while on the platform in the reasonable act of leaving defendant's train and premises, as well as while on the train, and that during such time defendant owed him "the duty of managing and operating its said train with the highest degree of care" and is liable to plaintiff for any omission of such care resulting in his injury, is also erroneous. It is certainly a far cry to say that the alleged negligent act of the brakeman had anything to do with the management and operation of the train, especially as connected with plaintiff's being on the train as a passenger as therein stated. This instruction is misleading to say the least.
This instruction leads us to further conclude that defendant's being a passenger either on the train or platform has nothing to do with the negligence complained of. Plaintiff was not doing the thing a passenger is supposed to be doing by leaving the train and proceeding along the platform in an endeavor to leave plaintiff's premises, nor was he transacting any business in which he had an interest. Had plaintiff been injured by some defect in or obstruction of the platform, or had the brakeman let the barrel fall out of the car door against him as he was passing along, the law of passenger and carrier would apply. Here, however, the plaintiff turned aside from his own course and business to engage in work in which he had no interest as a passenger or otherwise. Whether he became an employee of the defendant will be noticed later, but in any event the transaction which injured him was a joint act of his and the brakeman in which he voluntarily engaged and had nothing to do with his being a passenger. Had plaintiff been a mere idler on the platform as was the first man the brakeman asked to help him, his relationship to this unloading of the barrel would be the same. As said in Sherman v. Railroad, 72 Mo. 62, 65:
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