Smith v. St. Louis & San Francisco Ry. Co.

• Decision Date: 30 April 1885
• Citation: 85 Mo. 418
• Parties: SMITH, Appellant, v. THE ST. LOUIS & SAN FRANCISCO RAILWAY COMPANY.
• Court: Missouri Supreme Court

85 Mo. 418

SMITH, Appellant,

v.THE ST. LOUIS & SAN FRANCISCO RAILWAY COMPANY.

Supreme Court of Missouri.

April Term, 1885.

Appeal from St. Louis Court of Appeal.

AFFIRMED.

The following were the instructions given by the trial court for the plaintiff:

“1. If the testimony shows that the cars composing the train which caused the death of plaintiff's husband belong to the defendant, and also shows that such train was, at the time of the accident, under the care and control of the defendant's agents and employes, then the defendant's liability to this action has been established. And the jurors are instructed that if the evidence shows that the conductor and brakeman in charge of the train at the time of the accident were under the exclusive control and supervision of the defendant corporation as to compensation and service, then the train was under the care and control of the defendant's agents and employes.”

“2. The court further instructs the jury, as a matter of law, that the liability of a railroad company engaged as a common carrier of passengers, continues, not only while the passengers are in transit, but also so long as the passengers are in the reasonable act of leaving the cars and premises of the common carrier, on arrival at their place of destination.”

“3. The jury are further instructed, that the law makes it the duty of railway companies engaged as common carriers of passengers, to cause their depots and stations where passengers are accustomed to arrive and depart, to be so lighted at night that passengers could leave the cars and premises of such common carrier with reasonable safety; that railroad companies, owing to the dangerous character of the business they are engaged in, are held to the greatest possible care in the carriage of passengers, and are held responsible in law for the slightest neglect resulting in injury to passengers.”

“4. The jury are further instructed, that though the deceased may have remotely contributed to the injury which caused his death, yet, if the defendant, its agents or servants in charge of said train of cars, could, by the exercise of care and prudence, have prevented the injury and death, then the defendant would be liable in this action, and the jury should find for the plaintiff, and their verdict should be for the sum claimed in the petition.”

“5. The jury are further instructed, if they find from all the evidence of the case, that the agents or servants of the defendant were guilty of negligence in their management of the train of cars on which the deceased was a passenger, as stated in the petition, and that in consequence alone of such negligence, the deceased received injuries that caused his death, then the plaintiff would be entitled to recover in this action.”

“6. The jury are instructed if they find from the evidence that the defendant was the owner of the car or cars on which said Geo. E. Smith was a passenger, and that the train of cars was in charge of a conductor in the employ of the defendant; and if the jury further find from all the evidence that said train of cars was drawn by a steam engine belonging to the Missouri Pacific railway company and the engineer thereof in the employ of the Missouri Pacific Kailway Company; and if the jury further finds from the evidence that defendant's cars were so drawn over the road of the Missouri Pacific Railway Company, in pursuance of a private agreement and arrangement between the defendant and the said Missouri Pacific Railway Company; then the defendant would be liable in this action for negligent injury done said Smith as such passenger, that is for such injury as the evidence shows to have been occasioned by the negligence of the defendant's agents and employes.”

“7. The jury are instructed as a matter of law, that a passenger is entitled to a reasonable time and to reasonably safe facilities for leaving the car in which he has been riding when a train is stopped for that purpose; and in ascertaining what would be a reasonable time and reasonably safe facilities, the jury should consider the time and place of alighting with all the facts and circumstances bearing upon the question, whether the time of stopping was reasonable and the place reasonably safe.”

The instructions given at defendant's instance were as follows:

“1. The court instructs the jury that if the jury believe from all the evidence in this case that the defendant, the St. Louis & San Francisco Railway Company, had upon the first day of January, 1879, and at the time of the accident complained of, a contract with the Missouri Pacific Railway Company for the transportation of its cars, freight and passengers, over its line of road from Pacific or Franklin to the city of St. Louis, and that by the terms and conditions of such contract the management, control and direction of cars, agents and servants between said points aforesaid, were under the sole management and control of the Missouri Pacfic Railway Company, and if you further believe that said accident occurred at a point between said city of St. Louis and Pacific, then your verdict and finding must be for the defendant.”

“2. That if Smith's negligence in not getting off the train in due time, if you believe he was negligent in that particular, directly contributed to the injuries complained of, then, and in that case, plaintiff cannot recover in this action.”

“3. The court instructs the jury that if they believe from all the evidence in the case, that the train stopped a sufficient length of time at the depot to allow Mr. Smith to get off the same and on the platform, if he had exercised due care and diligence in doing so, then and in that case plaintiff cannot recover in this action.”

C. F. Moulton, Franklin Ferris and Edwin Silver for appellant.

(1) The action of plaintiff was founded on Revised Statutes, section 2121, which provides in express terms that the corporation in whose employ the agent or employe shall be at the time of the injury shall be the party liable. Proctor v. Ry., 64 Mo. 123. (2) Whether or not the relation of employer and employe existed between the conductor and defendant at the time of the accident was a pure question of fact for the jury. Pomeroy v. Singerson, 22 Mo. 177; Robinson v. Walton, 58 Mo. 380; Middleton v. Ry., 62 Mo. 581; Beake v. Ry., 34 Conn. 481; Hankerson v. Lombard, 35 Ill. 572; Packet Co. v. McCue, 17 Wallace, 509; Norris v. Koheer, 41 N. Y. 4; Crockett v. Calvert, 8 Ind. 128; Fenton v. Packet Co., 8 A. & E. 544-5. (3) And the question of fact was submitted to the jury under instructions asked by defendant as well as by plaintiff, and the cause was thus tried on defendant's own theory and it is now estopped to complain of the submission of the cause on its theory and the finding of the jury thereon. Crutchfield v. Ry., 64 Mo. 225; Leabo v. Goode, 67 Mo. 126; Davis v. Brown, 67 Mo. 313; Chamberlain v. Smith, 1 Mo. 482; McGongle v. Daugherty, 71 Mo. 259. The case stands thus: Whether or not the conductor was defendant's servant at the time of the accident was by all the authorities a pure question of fact; the defendant on the trial adopted this theory and asked an instruction, which the court gave, placing the question before the jury, and the jury under the evidence found the issue for plaintiff, which finding the trial court refused to disturb, yet the court of appeals holds that defendant's own theory of the cause was wrong and relieves him from it in the face of all the authorities holding a party is bound by the theory it adopts. (4) Where a contract is offered in evidence, as in this case, as the foundation for an inference of fact, viz.: Whether the conductor was in defendant's employment (and that it was so offered is clear from defendant's first instruction), the inference to be drawn from such contract is for the jury. Primm v. Haren, 27 Mo. 205; Wilson v. Board of Education, 63 Mo. 142. (5) By the very terms of the contract between the defendant and the Missouri Pacific Railway Company offered in evidence by the former, it was to furnish at its own expense “all train men for the care and management of its trains” between St. Louis and Pacific. By the very terms of this contract the conductor was in defendant's service at the time of the accident and the authorities uniformly hold the defendant liable under a state of facts like those here presented. McHugo v. Ry., 5 Reporter 342; 2 Thompson on Negligence, 462; Dalyell v. Tyer, 96 Eng. Com. Law 859; Joslin v. Ice Co., 50 Mich. 515; Mills v. Orange, etc., Ry., 1 McArthur 285; Nashville, etc., Ry. Co. v. Carroll, 6 Heisk. 347; Webb v. Ry., 59 Me. 136; Kelley v. Mayor, 11 N. Y. 432; Durst v. Burton, 47 N. Y. 167. (6) If the servants of both companies control the train jointly, both companies would be liable, as it has been held. Barrett v. Third Ave. Ry. Co., 45 N. Y. 628; Vary v. B. C. Ry. Co., 42 Iowa, 246; 5 Waits' Actions and Defences. 334, 335; Wabash, etc., Ry. v. Shacklett, 105 Ill. 364. (7) The defendant and the Missouri Pacific Railway could not by contract so change the relation of the conductor between themselves as to bind third persons and the public. P. W. & B. Ry., 58 Md. 372. (8) Even if said contract could so affect third persons and the public it could not be changed by parol evidence as defendant seeks to do.

Koehring v. Muemminghoff, 61 Mo. 403; Hagar v. Hagar, 71 Mo. 610. (9) In obeying the running orders of the Missouri Pacific company the conductor was in fact obeying the defendant who directed him so to do for the time being. Dowling v. Allen, 74 Mo. 19. (10) There was no demurrer to the evidence offered by defendant and hence the case was one for the jury to pass on. (11) The declarations of deceased accounting for his injuries were properly received in evidence. Brownell v. Ry., 47 Mo. 238; Entwhistle v. Fighner, 60 Mo. 214; Harrison v. Stone, 57 Mo. 93. (12) It is the duty of common carriers of passengers on railroads, on dark nights, to light the depot...