Siegrist v. Arnot

• Citation: 86 Mo. 200
• Parties: SIEGRIST et al. v. ARNOT, Appellant.
• Decision Date: 30 April 1885
• Court: United States State Supreme Court of Missouri

86 Mo. 200

SIEGRIST et al.

v.ARNOT, Appellant.

Supreme Court of Missouri.

April Term, 1885.

Appeal from St. Louis Court of Appeals.

REVERSED.

Fisher & Rowell for appellants.

(1) “The liabilities of a common carrier do not apply to those who let horses and carriages for hire.” Cooley on Torts, 638. (2) “A common carrier is one who regularly undertakes, for hire, to carry goods and passengers between different places, for such as may offer.” Cooley on Torts, 638. (3) The defendant's contract to loan his carriages was a gratuitous bailment, and subject only to such liability as the law prescribes for that kind of a contract. A gratuitous bailor is held only for gross negligence, which is the omission of care, which even the most inattentive and thoughtless never fail to take of their own concerns. Gray v. M. R. P. Co., 64 Mo. 49; Lygo v. Newbold, 9 Ex. 302; Wharton on Negligence, sec. 430; Gartside v. Proprietor, 4 T. R. 581; Lamb v. Western Railroad, 7 Allen 98; Carr v. Boston & L. Railroad, 14 Allen 448; Harper v. Hartford & N. H. Railroad, 37 Conn. 272; Story on Bailments, secs. 6, 374, 390. If one loan a horse to another, the borrower becomes a gratuitous bailee. 37 Ill. 250; Lobensteim v. Preckett, 8 Kas. 213. The borrower must use the property as agreed upon, and there is no liability if he does not so use it. Story on Bailments, secs 227, 232, 234-5, 396, 413; McCarty v. Young, 6 H. & M.; Horne v. Meakin, 115 Mass. 326. This case is high authority to the effect that even if the bailment is for hire, no one but the party hiring it can recover damages. A father claimed to hire a horse and vehicle for his son to attend a funeral with his wife, the latter being injured by the horse running away. There was evidence that the horse was a fractious animal. The defendant claimed that the horse was let to the father. The court held that if the horse was let to the father and used by the son, there could be no recovery. Lygo v. Newbold, 9 Ex. 302, was a case where a party got upon a conveyance by permission of defendant's servant, and was injured, and the court held that getting upon the vehicle without authority precluded a recovery; that the party ought to have known she had no right to be there. (4) “There can be no contract to transport safely, where there is no contract at all.” Norton v. Western Railroad, 15 N. Y. 449; Shearman & Redfield on Negligence, sec. 264. If a person has no lawful right to be on a vehicle, he cannot recover damages, except for gross negligence, after the latter has notice of the person's presence. Id. The defendant's instruction is sustained by Fink v. Potter, 17 Ill. 406; Ingalls v. Bliss, 9 Met. 1. (5) There was no eror in excluding the rebuttal evidence of Mrs. Siegrist. No proper foundation was laid for contradiction of Mrs. Garneau. Her attention was not called to a definite time and place, nor was the testimony material, for the defendant was not liable for what Mrs. Garneau did with her carriages.

E. B. Sherzer for respondent.

(1) The instructions asked by defendant should have been given. Minter v. Railway, 41 Mo. 503; Story on Agency, sec. 452; Garretzen v. Duenckel, 50 Mo. 104; Higgins v. Watervliet Road, 46 N. Y. 23; Cooley on Torts, 143, 539; Willen v. Ry., 107 Mass. 107; Jacobus v. Ry., 20 Minn. 125; Steamboat v. King, 16 How. (U. S.) 474. (2) Defendant's instructions should not have been given. If plaintiff leaped from the carriage in order to escape some impending danger, to which the negligence of defendant's servants exposed her, defendant, as author of the original peril, is answerable, provided the danger in remaining is apparently as great as that to be encountered in jumping out. Nelson v. Ry., 68 Mo. 595; Schultz v. Ry., 44 Wis. 638. The instructions given by the court of its own motion were inapt and misleading; such epithet, ““gross,” is “inapt and misleading.” Harper v. Railroad, 44 Mo. 488, 491; Lockwood v. Railroad, 17 Wallace, 357, 371, 382, 383; Bigelow on Torts, 266; Milwaukee Road v. Arms, 91 U. S. 489, 494, 495; McPheeters v. Railroad, 45 Mo. 22, 26; Lemon v. Chanslor, 68 Mo. 340, 357, 358.

HENRY, C. J.

This is an action by plaintiff for damages for an injury to Mrs. Siegrist, which she sustained by being thrown from a carriage of defendant, in the city of St. Louis. Defendant had a judgment in the circuit court, which was reversed by the court of appeals, and it is now here on appeal from the latter judgment.

Defendant was a livery stable keeper, and gratuitously furnished four of his carriages, and a driver for each, to carry to and from Mercantile Library Hall some young ladies and gentlemen who were to take part in a performance there for the benefit of orphans. It was distinctly agreed between the defendant and Mrs. Garneau, who, with Miss Hopkins, managed the entertainment, that the carriages were for the use of the ladies and gentlemen who took parts in the tableaux, and that Mrs. Garneau was to furnish to defendant the names of the parties to be carried in his vehicles, so arranging them as to make the least travel for each carriage. This was furnished, and in one of defendant's carriages Miss Wickham, Miss Garrison and Miss Barney were taken to the hall, the driver calling at the residence of each of these ladies for them, neither of them directing him whom he should go for. The testimony is uncontradicted that the names of persons to go in his carriages were furnished to defendant, and the fact equally well established that the driver of this particular carriage went for those three ladies who did perform on the occasion, corroborates the testimony of defendant, that each of his drivers had a list of the names of the persons who were to be carried in the carriage driven by him.

After the entertainment Mrs. Siegrist, who had taken no part in the performance, but whose daughter had, got into the carriage, she says, by direction of Mr. Garneau, son of Mrs. Joseph Garneau, who had made the arrangement with defendant, and soon after the three young ladies who had gone there together got into the carriage in which Mrs. Siegrist had taken her seat. Young Garneau was stationed there to seat performers in the carriage. There is not a particle of evidence tending to prove that the driver knew that Mrs. Siegrist was in the carriage; she says she did not see him, or speak with him. He was at his place on the box, outside, when she took her seat. It was eleven o'clock at night. He had reason to suppose that he would carry those home who had gone to the hall in his carriage. After letting the three young ladies out of the carriage, the last one at Judge Wickham's door, his horses took fright and ran, and Mrs. Siegrist was thrown from the carriage and the driver from his seat. It is a significant fact, that when on the ground, stunned by the fall, he said, answering a question, that there was no one in the carriage, and this tends strongly to prove that it was the same carriage in which the young ladies above named had gone to the hall, and that the driver did not know that Mrs. Siegrist was in his carriage. Her young son had ridden from the hall on the box with the driver, but had got down at Judge Wickham's, and there is no evidence tending to prove that the driver knew that he was Mrs. Siegrist's son, or who he was.

Mrs. Siegrist had no arrangement with Mr. Arnot, or his driver, or with Mrs. Garneau, to ride in Arnot's carriage. Neither Arnot nor his driver knew that she had taken a seat in the carriage, and she must have known that she had no right to a seat in it. On these facts, what is the law?

The court declared it to be as follows: “The jury are instructed that if they believe from the evidence that the carriage was furnished gratuitously by the defendant under an agreement with him that it was to be used only in the conveyance to and from the library of persons who were to perform in the tableaux mentioned in the evidence, and if they further believe that the plaintiff, Mrs. Siegrist, was not one of such performers, and that she entered said carriage without the knowledge or consent of the defendant, then the defendant is not liable for any injuries she may have sustained while being driven in said carriage, even though the driver of said vehicle had undertaken to drive her to her home, unless the jury shall further find that such injuries were occasioned by gross carelessness on the part of the defendant. And in order to find the defendant liable on account of such carelessness, the jury must believe from the evidence that at the time of the accident the driver of said vehicle was so intoxicated as to be unfit to manage the team entrusted to him, and that this fact was known to the defendant and not known to said plaintiff, or that the habits of said driver, either as to drunkenness or carelessness, were such as to render him an unsafe or unfit person to be placed in charge of a vehicle, and that such habits were known to the defendant at the time; and further, that the injuries received by the said plaintiff were occasioned by the drunkenness or carelessness of said driver.”

Defendant was not a common carrier. He was under no obligation to carry any one that...