St. Clair v. St. Louis & San Francisco Railroad Co.

• Decision Date: 05 February 1907
• Citation: 99 S.W. 775,122 Mo.App. 519
• Parties: ST. CLAIR, Respondent, v. ST. LOUIS AND SAN FRANCISCO RAILROAD COMPANY, Appellant
• Court: Missouri Court of Appeals

99 S.W. 775

122 Mo.App. 519

ST. CLAIR, Respondent, v. ST. LOUIS AND SAN FRANCISCO RAILROAD COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

February 5, 1907

Appeal from St. Louis City Circuit Court.--Hon. Jesse A. McDonald Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

L. F Parker for appellant.

(1) The plaintiff was not a passenger on defendant's train, and the duty owning by defendant to him was not that high degree of skill and care which it owed to passengers, but the duty of exercising ordinary care to avoid injuring him. Higgins v. Railroad, 36 Mo. 418; Lovell v Howell, L. R. 1 C. P. Div. 161-169; State to use v. Railroad, 63 Md. 433; Washburn v. Railroad, 3 Head 638, 75 Am. Dec. 784; Railroad v. Britz, 72 Ill. 256; Heine v. Railroad, 58 Wis. 525, 17 N.W. 420; Capper v. Railroad, 103 Ind. 305, 2 N.E. 749; Knahtla v. Railroad, 21 Or. 136, 27 P. 91; Kumler v. Railroad, 33 Ohio St. 150; McFarlane v. Gilmour, 5 Ont. 302; Railroad v. Durkin, 76 Ill. 395; Abend v. Railroad, 111 Ill. 202; Railroad v. Tindall, 13 Ind. 366; Gilman v. Eastern R. Corp., 10 Allen 233; Cassidy v. Railroad, 76 Maine 488; Sullivan v. Railroad, 58 Ind. 26; Dallas v. Railroad, 61 Tex. 196. (2) The burden of proof was upon the plaintiff to show that he was injured by the negligence of the defendant, and this burden was not satisfied by a mere proof of the accident, but plaintiff should have gone further, and have shown that the cause of the accident was the negligence of the railroad company, and not a latent defect in machinery, the result of a risk assumed by the plaintiff as an employee, or some other cause for which the defendant would not be liable. The maxim, res ipsa loquitur, does not apply to a case of this character. Conlon v. Glasgow, 1 Sc. Sess. Cas. 5th Series, 869; Railroad v. Welch, 72 Tex. 298; Bartonshill Coal Co. v. McGuire, 3 Macq. H. L. Cas. 308; McGuirk v. Shattuck, 160 Mass. 45, 35 N.E. 110; O'Brien v. Railroad, 138 Mass. 387; Vick v. Railroad, 95 N.Y. 267; Tunney v. Railroad, L. R. 1 C. P. 291; Manville v. Railroad, 11 Ohio St. 417; Ryan v. Railroad, 23 Pa. 384; Railroad v. Salmon, 11 Kan. 83; Railroad v. Stuber, 108 F. 934; Railroad v. Ryan, 82 Tex. 565; Wright v. Railroad, 122 N.C. 852, 29 S.E. 100; Hutchinson v. York, 5 Exch. 343.

Lee Meriwether for respondent.

(1) A railroad employee, going to or returning from his place of employment, has the rights of a passenger in case he is injured by the carrier's negligence, even though he be riding in violation of a rule of the company. Plaintiff was a passenger at the time of the accident, and his claim upon defendant is that of a passenger upon a common carrier. Chattanooga R. T. Co. v. Venable, 105 Tenn. 460; McNulty v. Railroad, 182 Pa. 479; Gillenwater v. Railroad, 5 Ind. 339; Haas v. Railroad, 111 Mo.App. 713; Olsen v. Railroad, 152 Mo. 426; (2) Whether or not plaintiff be deemed a passenger, or a servant of defendant's, at the time of the accident, proof of a rear-end collision was prima facie evidence of negligence on defendant's part. The doctrine of res ipsa loquitur obtains in cases of injury to servants as well as to passengers. Pattison on Ry. Accident Law, sec. 375; Rine v. Railroad, 100 Mo. 222; Minster v. Railroad, 53 Mo.App. 276; Hill v. Scott, 38 Mo.App. 370.

NORTONI, J. Bland, P. J., and Goode, J., concur.

OPINION

NORTONI, J.

--The plaintiff was in the employ of the defendant as toolhouse foreman and had been for several years. His duties consisted in part, at least, in caring for the defendant's tools, etc. Among other things, it was his duty to accompany defendant's men who were engaged in disposing of wrecks on the line of its road and assist in clearing up such wrecks and looking after the tools, etc. He was therefore frequently called out on the line of defendant's railroad in the discharge of such duties as pertained to this employment. A wreck having occurred on the defendant's line, the plaintiff was conveyed thereto by the defendant, and after having finished his labors thereat, he, together with numerous other employees, at the instance and direction of their foreman, took passage in the caboose or way-car of one of its freight trains for their headquarters, the city of St. Louis. After having progressed a few miles toward the city, the train on which plaintiff and his companions were being conveyed, entered a siding at a small town, probably to permit some other train to pass them on the main line, and while on said siding, one of defendant's locomotives, attached to and hauling one of its trains, ran into and collided with the caboose on which plaintiff was riding, whereby he was seriously and no doubt permanently injured, hence this suit for damages accrued to him by such injury.

At the trial in the circuit court, plaintiff proceeded upon the theory that he was a passenger on defendant's caboose car, and, relying upon the doctrine of res ipsa loquitur, made no proof of specific negligence against the defendant other than the fact of the collision itself and relied solely upon the presumption of law arising therefrom generally that such collision was in and of itself evidence of negligence. At his instance and request, the court charged the jury as follows:

"The court instructs the jury that while a railroad is not an insurer of the absolute safety of passengers and employees riding on its trains, yet where a person rightfully and lawfully riding in one of its cars, receives injury by the overturning or wrecking of said car, a prima facie case is made out for him, and the onus is cast upon the railroad company of relieving itself from the responsibility of showing that the injury was the result of an accident which skill, foresight and diligence could not have prevented. As a common carrier operating trains and locomotives for hire, it is defendant's duty to use a high degree of skill and care and it is responsible for all injuries arising from the negligence either of itself, or of its agents or servants. Therefore, if you believe from the evidence that on the 5th day of November, 1904, plaintiff, while engaged in the pursuit of his duty as one of defendant's employees, took one of defendant's cars to return to St. Louis and while he was riding in said car a locomotive owned, operated and controlled by defendant ran into said car and caused the injuries complained of, plaintiff himself in nowise causing or contributing to said collision, or to said injuries, then your verdict must be for the plaintiff, unless you further find from the evidence that said collision was caused by inevitable accident which could not have been avoided by the exercise of care by defendant, or by defendant's agents or servants."

To which defendant objected and excepted.

1. The defendant insists that the court erred in instructing the jury on the theory that the plaintiff was a passenger on defendant's train. Now, if the plaintiff was an employee while on the caboose of the freight train and injured, then the relation which existed between him and the defendant was that of master and servant and not that of passenger and carrier. As defendant's servant on its freight train caboose car, incident to his employment, the measure of care which was due him from the defendant master, was to exercise ordinary care to the end of furnishing him a reasonably safe place to work, or for transportation to and from his labors as a passenger, the obligation of the defendant to him would go quite beyond the limits of ordinary care and it would devolve upon the defendant to exercise that high degree of care which is always required from a common carrier in favor of a passenger, looking to his safe transportation. From this relative statement of the principle which obtains with reference to the two relations, it is observed that it is important to ascertain just what the relation of the parties was at the time of the catastrophe. The plaintiff relies upon and cites us to the case of Haas v. St. L. & Sub. Ry. Co., 111 Mo.App. 706, 90 S.W. 1155, to support his theory that the plaintiff was a passenger and not an employee. The case referred to is in its facts, quite similar to that now in judgment, but the relations of the parties there determined are in nowise identical. There the plaintiff, a track laborer in the defendant's employment, was directed by his foreman to take passage on one of its passenger cars (street car) to another part of the road and perform certain labor, which passage he took incident to his employment, without the payment of a fare, riding as employees usually do, and while thus in transit, he was injured by means of a rear-end collision occasioned by another one of defendant's street cars colliding with the car on which he was being transported. The defense of fellow-service was interposed and it was argued in this court that the plaintiff's injuries were occasioned because of the negligence of the motorman on the car which collided with the car on which he was riding; that such motorman was the plaintiff's fellow-servant, the risk of whose negligence the plaintiff had assumed as one ordinarily incident to the employment, etc. From this it will appear that the precise question presented for decision was not the relation between plaintiff, the servant, and the defendant, his master, but it was the relation in which the plaintiff stood to the motorman whose negligence caused the injury, and on this question it was adjudged that the plaintiff and the motorman were not fellow-servants, and this being the only defense interposed, that the plaintiff therefore stood as any other passenger on defendant's passenger car being transported, in whose favor the doctrine of res ipsa loquitur obtained with respect to the...