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 |
Appeal from St. Louis Court of Appeal.
AFFIRMED.
The following were the instructions given by the trial court for the plaintiff:
The instructions given at defendant's instance were as follows:
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...
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