St. Joseph & W.R. Co. v. Wheeler

• Decision Date: 09 April 1886
• Citation: 35 Kan. 185,10 P. 461
• Court: Kansas Supreme Court
• Parties: THE ST. JOSEPH & WESTERN RAILROAD COMPANY v. DEWITT C. WHEELER

10 P. 461

35 Kan. 185

THE ST. JOSEPH & WESTERN RAILROAD COMPANY v. DEWITT C. WHEELER

Supreme Court of Kansas

April 9, 1886

Error from Doniphan District Court.

ACTION by De Witt C. Wheeler, as administrator of the estate of Frank Wheeler, deceased, against The Railroad Company, to recover damages for the benefit of the next of kin of the decedent, whose death is alleged to have been caused by the negligence of the defendant. Trial at the December Term 1884, and judgment for plaintiff for $ 1,500. The Company brings the case here. The material facts are stated in the opinion.

Judgment affirmed.

Doniphan & Reed, and T. W. Heatley, for plaintiff in error.

W. D Webb, for defendant in error.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

De Witt C. Wheeler, as administrator of the estate of Frank Wheeler, deceased, brought this action under § 422 of the civil code, to recover damages for the benefit of the next of kin of Frank Wheeler, whose death, it is alleged, was caused by the gross carelessness and negligence of the St. Joseph & Western Railroad Company. There was but little dispute concerning the facts of the case. On June 17, 1881, the defendant below was operating a railroad which runs from Elwood westward through Doniphan and other counties of Kansas to Grand Island, Nebraska. On that day a work or construction train with a caboose car attached, was sent from Elwood to a point near Troy, for the purpose of being loaded with dirt to be brought back for the repair of the road-bed between Wathena and Elwood, with instructions to work until ten o'clock in the morning without regard to train No. 7, a freight train going west. While the train was being loaded, Frank Wheeler, in company with another boy, came up to the construction train, and learning that it was soon going eastward, asked the conductor if he might ride back. The conductor consented, and Frank Wheeler rode in the caboose car with other persons that belonged to the train. He paid no fare, and was not asked or expected to pay any. Soon after he was taken on, the construction train backed eastwardly toward Wathena, and before reaching that place, and at 9:45 A. M. of that day, it collided with the engine of train No. 7 going westward, in which collision Frank Wheeler was killed. The conductor of the construction train had instructions from the railroad company not to allow persons as passengers to ride upon his train except those who belonged to it, but this instruction was not communicated to Frank Wheeler. Upon these and some other facts which were shown upon the trial, a verdict for $ 1,500 was given in favor of the plaintiff.

One of the questions raised is, that there was no correspondence between the pleadings and the evidence. The point is made that the plaintiff alleged that Frank Wheeler was a passenger, a term which it is claimed implied that Frank Wheeler was traveling in a public conveyance by virtue of a contract, express or implied, with the carrier, as the payment of fare, or that which is accepted as an equivalent therefor, while the evidence offered showed that he was carried on a train not designed for passengers, that no fare was collected or expected to be paid, and therefore that he did not stand toward the company in the relation of a passenger. This is one sense in which the term is used, but not the only one. It is commonly applied to anyone who travels in a conveyance, or who is carried upon a journey, irrespective of the character of the conveyance or of compensation to the carrier. While the plaintiff alleged that Wheeler was carried as a passenger, he nowhere averred that he was carried for hire, nor can it be said that the petition was framed upon the theory that there was a contract relation between deceased and the company. It was rather upon the theory that he was not a trespasser upon the defendant's train, and it is specially alleged that he was upon the train with the knowledge and consent of the conductor. From this averment it is manifest that the pleader did not rely upon any agreement between the company and Wheeler, and did not intend to hold the company to extraordinary care, as it would be held in carrying persons who were passengers in a strictly legal sense; but rather, that as Wheeler was upon the train with the consent of the conductor, he was not wrongfully there, and the company owed him the duty of ordinary care. The action was founded upon the neglect of the company and not upon the breach of a contract; and allegations of the relation which he occupied toward the company are only material for the purpose of determining and fixing the grade of care owing to him by the company. As we interpret the petition, it did not allege that the relation of carrier and passenger existed by reason of an agreement between the deceased and the company, and therefore that there was no substantial variance between the pleadings and the evidence.

A series of instructions were prepared by the railroad company and disallowed by the court, and their refusal is assigned as error. Most of them in effect instructed a verdict in favor of the defendant, and asserted that the company cannot be held liable for injury to one who rides upon a construction train with the consent of the conductor, and who is not a passenger in the ordinary sense. They were properly refused. We concur with the view of the law taken by the trial judge where he states that:

"Under the admitted facts and the evidence in the case, the said Frank Wheeler was not a trespasser upon defendant's train, although he was not in legal contemplation a passenger. A common carrier of passengers is bound to exercise extraordinary care towards its passengers, and is liable for slight negligence, but it does not owe the same degree of care to a person on one of its vehicles or trains, who does not stand in the relation of a passenger. To such persons a carrier owes only the duty of ordinary care, which is that degree of care which persons of ordinary prudence would usually exercise under like circumstances."

It is contended that Frank Wheeler was an intruder upon the train for whose injury no liability could arise against the company, for two reasons: First, that the conductor had instructions not to carry passengers on the construction train; and second, that from the nature of the business which was being done with the train, and also its equipment, it was apparent that the company did not permit passengers to be carried thereon. Neither of these circumstances will defeat a recovery in this case. It is true the conductor had been instructed not to allow persons to ride upon his train as passengers, but Frank Wheeler had no knowledge of such instruction. He had asked and obtained permission to ride upon the train. It was within the range of the employment of the conductor to grant such permission. He had entire charge of the train, and was the general agent of the company in the operation of the train. As he was the representative of the company, his act, and the permission given by him, may properly be...