Sykes v. St. Louis & S. F. R. Co.

• Decision Date: 23 December 1903
• Citation: 178 Mo. 693,77 S.W. 723
• Court: Missouri Supreme Court
• Parties: SYKES v. ST. LOUIS & S. F. R. CO.

77 S.W. 723

178 Mo. 693

SYKES v. ST. LOUIS & S. F. R. CO.

Supreme Court of Missouri, Division No. 1.

December 23, 1903.

INTERMEDIATE CARRIER — DEFECTIVE CAR — INJURY TO CONSIGNEE'S SERVANT — LIABILITY — PRESUMPTION OF DUE CARE — RELIANCE — APPEAL — PROPRIETY OF REMAND.

1. The servant of a consignee, suing a carrier for injuries from a defective railroad car, who knew that cars similarly received often possessed the same defects, had no right to rely on a presumption that defendant had supplied a car in such repair as would enable him to unload it in safety.

2. The duty of an intermediate carrier is to inspect a car to see that it is in proper condition to be received by the ultimate carrier, but it owes no duty to the servant of the consignee, rendering it liable for injury from a defective car.

3. Where a judgment for plaintiff is reversed because defendant owed plaintiff no legal duty, and therefore could violate none, the case will not be remanded.

Appeal from St. Louis Circuit Court; Wm. Zachritz, Judge.

Action by John W. Sykes against the St. Louis & San Francisco Railroad Company. From a judgment for defendant, plaintiff appealed to the St. Louis Court of Appeals, from which court, after reversal, the case was certified in the Supreme Court. Judgment of the Court of Appeals affirmed, with direction not to remand.

J. T. Woodruff and L. F. Parker, for appellant. Thos. B. Harvey, for respondent.

MARSHALL, J.

This is an action for personal injuries. The plaintiff recovered $1,500 damages in the circuit court. The defendant appealed to the St. Louis Court of Appeals, and that court reversed the judgment, and ordered the case remanded to the circuit court for a retrial. One of the judges of that court concurred in reversing the judgment, but not in remanding the case, and deemed the order remanding the case to be in conflict with the decision of this court in Roddy v. Railroad, 104 Mo. 234, 15 S. W. 1112, 12 L. R. A. 746, 24 Am. St. Rep. 333; and for this reason that court certified the case to this court, under the sixth amendment to article 6 of the Constitution, and the case is therefore here for determination as in case of jurisdiction obtained by ordinary appellate process.

The suit was originally against both the defendant railroad and the St. Louis Car Wheel Company. The trial court nonsuited the plaintiff as to the St. Louis Car Wheel Company, and the plaintiff recovered a judgment in that court against the railroad company.

The case made is this: The plaintiff was a common laborer in the employ of the St. Louis Car Wheel Company. That company was engaged in the business of making and repairing car wheels. Its place of business was located between the tracks of the Wabash and Missouri Pacific Railroads, and each of said roads had switch tracks running into and upon the property and place of business of the car wheel company, over which cars were run carrying new wheels from, or old wheels into, the place of business of the car wheel company. The defendant had no tracks running to the premises of the car wheel company. It was a part of the plaintiff's business to unload the old wheels so brought to the premises of the car wheel company, and he had been so engaged for about three years before the date of the accident complained of. On January 17, 1898, defendant's coal car No. 5,149, loaded with coal, was delivered by defendant, at Nichols Junction, to the Kansas City, Ft. Scott & Memphis Railroad Company, and consigned to a consignee at Kansas City. It was inspected by defendant's inspector at that time, and found to be in good condition. After delivery of the coal to the consignee at Kansas City, the Kansas City, Ft. Scott & Memphis Railroad Company loaded the car at Kansas City with old car wheels that were consigned by one Jarvis, at Kansas City, to the St. Louis Car Wheel Company, at St. Louis. The car was properly inspected by the Kansas City, Ft. Scott & Memphis Railroad Company at the time of so loading it, and it was then found to be in good condition. The Kansas City, Ft. Scott & Memphis Railroad Company billed the car to Nichols Junction, and carried it to that place, where it was delivered to the common agent of that company and of the defendant; and that agent, acting for the defendant, billed the car to the car wheel company at St. Louis. The car was inspected by the defendant's inspector at Nichols Junction, and found to be in good condition. The car was hauled by the defendant from Nichols Junction to the eastern terminus of the defendant's road (at that time), at Chouteau avenue, in St. Louis, and there delivered to the Missouri Pacific Railroad, and by it hauled over its tracks to the premises of the St. Louis Car Wheel Company, and was delivered to that company on January 29th. It remained there until the morning of January 31st, when the foreman of the car wheel company ordered the plaintiff and other workmen to unload the car, which they proceeded to do; and in the doing of it, and while moving one of the wheels, the plaintiff stepped into a hole in the floor of the car, his right foot and leg went down through the hole, he was thrown down, and the car wheel rolled back onto his leg and broke it. The hole was eight or nine inches long and four or five inches wide. The plaintiff's testimony and that of his witnesses is to the effect that the hole appeared to be an old break; that there were other holes in the floor of the car, which had been covered over with planks; that the floor of the car was rotten; that there were trash and straw and ice on the floor of the car, which hid the condition of the floor; and one witness said that the hole into which the plaintiff stepped appeared to have been covered with a piece of bark and with trash and straw. The plaintiff testified that he had unloaded many cars before; that it was a very common occurrence for cars to come there with holes in their floors, and that some of them would have planks laid over the holes; that he saw cars there with holes in their floors every day; that the cars of the Burlington Road were the worst, and that it was a common occurrence for the cars of that road to have holes in the floors; that it was not so common for the cars of other roads to have such holes, but that he saw holes in other cars often. He further testified that, when the men started to unload this car, they had to shove the trash away, so that the door of the car would rest flat on the floor of the car; that he never examined this car, before commencing work, to see whether there were any holes in the floor, and never paid any attention to that matter; that he did not see anything wrong with the floor, and did not look for anything; that there was nothing to prevent his seeing whether there was anything wrong with the car, as he had good eyes, but that he did not apprehend any danger, and did not examine the floor of the car at all before he was hurt. It appeared that the defendant charged and collected from the car wheel company the sum of $33.95 for hauling the car from Nichols Junction to St. Louis. It also appeared that, when the defendant delivered cars that were consigned to the car wheel company to the Missouri Pacific Railroad Company, the defendant ceased to have any control over them, or to have anything further to do with them. It also appeared that the Missouri Pacific Railroad charged $2 per car for hauling the car from the terminus of the defendant's road to the premises of the car wheel company; and the plaintiff contends that the defendant included that charge in its bill, and collected it from the car wheel company and paid it to the Missouri Pacific Railroad Company, and that in rendering the service the Missouri Pacific Railroad Company only acted as the agent for the defendant. On the other hand, the defendant claims that the Missouri Pacific Railroad was an independent connecting carrier, and that, when the defendant turned over the cars to the Missouri Pacific Railroad, the power, authority, and control of the defendant over the car ceased, and therefore its liability with respect to the car ceased, and that the Missouri Pacific Railroad Company became the connecting carrier to transport the car to its destination, and that this is true without regard to how many miles that company had to haul the car. There is no substantial evidence to support the plaintiff's contention that the defendant collected the charges of the Missouri Pacific Railroad for switching or hauling the car, nor that that road was merely acting as an agent of the defendant in hauling the car from the terminus of the defendant's road to the premises of the car wheel company. So far as the record here discloses, the defendant was an intermediate connecting carrier in this case.

At the close of the whole case the defendant demurred to the evidence, the court overruled the demurrer, and the defendant excepted. As before stated, the car wheel company also demurred to the evidence, and the court sustained the demurrer as to that company. The defendant stood upon its demurrer to the evidence, and asked no other instructions. At the request of the plaintiff, the court gave six instructions, but, as the fifth related to the measure of damages, and the sixth related to the burden of proof, and as no point is made here as to those instructions, they need not be reproduced. The other four instructions given for the plaintiff are as follows:

"(1) The court instructs the jury that if you believe and find from the evidence in the case that, at the time of the injury complained of by plaintiff, he was engaged at work in the employment of defendant St. Louis Car Wheel Company in unloading car wheels from a car which had been run in and upon the premises of said car wheel company by the defendant St. Louis & San Francisco Railroad Company, to be by it, the said car wheel company, unloaded; the said railroad company being engaged in and paid for the...