St. Louis & S.F. Ry. Co. v. Nichols
| Decision Date | 22 July 1913 |
| Parties | ST. LOUIS & S. F. RY. CO. v. NICHOLS. [d1] |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
A carrier of persons for reward must use the utmost care and diligence for their safe carriage, must provide everything necessary for that purpose, and must exercise to that end a reasonable degree of skill. Section 800, Harris-Day Code.
In a suit by a passenger for injuries occasioned by the derailment and wreck of a train, proof of such derailment and wreck, the circumstances thereof, and the injury occasioned thereby makes a prima facie case of negligence and casts upon the carrier the burden of showing that it was not negligent.
The payment of fare or the possession of a ticket or pass although the usual evidence of the right of a person to ride on a train, are not absolutely essential to the creation of the relation of passenger and carrier, so far as relates to the carrier's liability for injuries to a passenger.
N procured a shipping contract for the transportation of a horse from Lawton to Oklahoma City, which on its face contained strong indications that he was entitled to free passage on the train for the purpose of caring for the horse. He loaded the horse into a car with the assistance of a trainman and placed in the car a water bucket and feed for the horse. The reverse side of the contract, called the pass provision, had not been signed and made effective. He presented himself in the caboose of the train and the conductor saw his live stock contract and made no objection to his riding. N. was not asked for, nor did he pay any fare although provided with ample means. The train did not in fact carry passengers, except those with live stock passes. Nor did the conductor have authority to permit persons to ride. These facts were not known to N. After the train had proceeded about 40 miles it was wrecked and N. was injured while sitting in the caboose. Held, that under the circumstances N., having taken passage in good faith with the acquiescence of the conductor, and without knowing that he was not entitled to ride on the train, nor that the conductor had no authority to permit it, was a passenger and was entitled to the protection and care due such on the ground that it was within the apparent scope of the authority of the conductor to receive him as a passenger.
An intruder or trespasser, or one who gains his presence on a train surreptitiously, fraudulently, or deceitfully or through collusion or illegal contrivance with the train crew does not thereby become a passenger and entitled to the care due passengers.
Evidence examined in the opinion, and held sufficient to justify the jury in avoiding a release of damages signed by plaintiff.
Additional Syllabus by Editorial Staff.
Where a release of damages for personal injuries received in a train wreck is obtained while the injured person is suffering from such nervous shock that he does not understand or comprehend its purport or meaning or is obtained by false and fraudulent representations of a claim agent, it is not binding.
In a passenger's action for injuries from a train wreck, photographs of the derailed train, overturned engine, and broken cars, taken on the day of the wreck while the conditions remained unchanged, were properly admitted in evidence.
Commissioners' Opinion, Division No. 2. Error from District Court, Oklahoma County; John J. Carney, Judge.
Action by Gilbert A. Nichols against the St. Louis & San Francisco Railway Company, a corporation. Judgment for plaintiff, and defendant brings error. Affirmed.
W. F. Evans, of St. Louis, Mo., and R. A. Kleinschmidt, of Oklahoma City, for plaintiff in error.
Moss & Turner, of Oklahoma City, for defendant in error.
All the questions in this case grow out of or relate to the following two: (1) Was the plaintiff below a passenger on defendant's train at the time of his injury? (2) Was the jury justified in avoiding an alleged settlement for the damages growing out of such injuries?
On March 28, 1908, the plaintiff entered into a live stock contract to ship a horse from Lawton to Oklahoma City; the contract was in the usual form and was signed by plaintiff and the station agent. Regulations on the reverse or back side of the contract pertaining to the transportation of a caretaker were not signed by either party. The plaintiff, with the assistance of trainmen loaded the horse into a box car, depositing therein feed and a bucket for watering the animal. Before the train started he entered the caboose, meeting the conductor in charge of the train and other employés. The conductor examined his shipping contract and knew that plaintiff was transporting a horse on the train. No objection to his riding or demand for fare was made and none was paid, although the plaintiff had with him ample means. The undisputed evidence shows: After the freight train had proceeded to within a few miles of Cement, that it attached to, and carried with it, in front of the engine, a coal car filled with stone, higher than the edges of the car in the center. That in a mile or two after the car had been taken on, while the train was moving downgrade and rapidly, the car of stone, the engine, the tender, and other cars were derailed and wrecked at a trestle; several employés being badly hurt. Broken flanges from the rims of car wheels showing old rusty fractures were found scattered along the track for several hundred yards. The plaintiff was thrown from his seat in the caboose against the front end, striking his head, rendering him unconscious for a short time. When he revived sufficiently he got out, assisted the injured and in the flagging of trains. A wrecker coming out from Lawton in an hour or two brought a claim agent, who, upon the scene of the wreck, obtained the plaintiff's signature to a paper agreeing to settle and fully compromise all his claims for damages for the sum of $20; the same to be later paid him. After arriving at Oklahoma City and receiving medical attention and advice, the $20 was refused upon tender made by the defendant, and later this suit for $1,999.99 alleged as the damages was brought.
When the above facts were shown in evidence, a prima facie case of negligence was established, together with the right of the plaintiff to recover for any damages sustained, if the relation existing between him and the company was that of carrier and passenger. It may be well to observe at this point that, after the prima facie case of negligence had been established by the evidence, the burden was then cast on the defendant to show that it had not been negligent in the premises, and that nowhere in the evidence is an attempt made, or a word of proof introduced, tending to relieve the defendant of this burden.
This relieves us to start with from the necessity of discussing alleged errors of the court in defining the duty and degree of care imposed by law, where the relation of carrier and passenger exists, since the court might have very correctly informed the jury, under the evidence in this case, that liability existed, if plaintiff was a passenger, unless precluded by his alleged settlement. "A carrier of persons for reward must use the utmost care and diligence for their safe carriage, must provide everything necessary for that purpose, and must exercise to that end a reasonable degree of skill." Section 429, Stat. 1909; section 800, Harris-Day Code; C., R.I. & P. Ry. Co. v. Stibbs, 17 Okl. 97, 87 P. 293; Lane v. C. O. & G. R. Co., 19 Okl. 324, 91 P. 883; St. L. & S. F. Ry. Co. v. Gosnell, 23 Okl. 588, 101 P. 1126, 22 L. R. A. (N. S.) 892; St. L. & S. F. Ry. Co. v. Kerns, 136 P. 169 (recently decided and not yet officially reported). For rule and valuable discussion, see Indianapolis & St. L. R. Co. v. Horst, 93 U.S. 291, 23 L.Ed. 898.
In a suit by a passenger for injuries occasioned by the derailment and wreck of a train, proof of such derailment and wreck, the circumstances thereof, and the injury occasioned thereby makes a prima facie case of negligence and casts upon the carrier the burden of showing that it was not negligent. Hutchinson on Carriers, vol. 3, § 1413 et seq. Was the plaintiff a passenger?
The payment of fare or possession of a ticket or pass, although the usual evidence of the right of a person to ride on a train, are not absolutely essential to the creation of the relation of passenger and carrier, so far as relates to the carrier's liability for injuries to a passenger. Simmons v. Oregon R. R. Co., 41 Or. 151, 69 P. 440, 1022; Hutchinson on Carriers, vol. 2, § 1019.
The live stock contract made with the company, in the main body thereof, after designating the company as party of the first part and the shipper as party of the second part, contained scattered through it the following expressions: "That, for and in consideration of the consideration hereafter named, party of the first part will transport for the said party of the second part and the parties in charge thereof as hereinafter provided."
The shipper agreed to "select the car or cars" and after stock is loaded, and before it leaves the station "will again examine said car or cars and will see that all doors * * * are closed and fastened and afterwards kept so closed and fastened as to prevent the escape of live stock therefrom." That shipper "will load, unload, and when necessary reload said stock and feed, water, and attend to same at his own risk and expense while the same are in the cars of the company," and the second party "shall bear all damages from his negligence or failure to...
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