Thomas v. St. Louis-San Francisco Ry. Co.

• Decision Date: 21 February 1927
• Docket Number: No. 19608.,19608.
• Citation: 293 S.W. 1051
• Parties: THOMAS v. ST. LOUIS-SAN FRANCISCO RY. CO.
• Court: Missouri Court of Appeals

293 S.W. 1051

THOMAS v. ST. LOUIS-SAN FRANCISCO RY. CO.

No. 19608.

St. Louis Court of Appeals. Missouri.

February 21, 1927.

Rehearing Denied March 15, 1927.

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

"Not to be officially published."

Action by Herman Thomas against the St. Louis-San Francisco Railway Company and another. From the judgment for plaintiff against named defendant, it appeals. Affirmed.

E. T. Miller and A. P. Stewart, both of St. Louis, and C. H. Skinker, Jr., of Springfield, for appellant.

Foristel, Mudd, Hezel & Habenicht, of St. Louis, for respondent.

BENNICK, C.

This is an action for damages for personal injuries. The verdict of the jury was in favor of plaintiff in the sum of $1,500, and from the judgment rendered thereon defendant, after an unavailing motion for a new trial, has perfected this appeal.

The charge of negligence in the petition was as follows:

"Plaintiff states that on or about the 2d day of October, 1921, he was on the premises of the defendants at their station and depot in the city or town of Valley Park, Mo., for the purpose of becoming a passenger upon one of defendants' trains, and that while there, defendants operated one of their trains along, upon and over one of their said tracks adjacent to said station and passed said station and depot and the platform thereof, whereat plaintiff was then and there waiting, as aforesaid, and that while said train was being operated along, upon and over said track there and passing said station and depot and platform, a heavy piece of metal, commonly known as a heel block or filling block; and which said block was a part of said track and used in connection therewith, suddenly and with great force and violence flew or was hurled from said track as said train was passing over that point in the track where said block or piece of metal was located, as a direct and proximate result of the negligence and carelessness of the defendants, and that said block of metal struck plaintiff with great force and violence. * * *"

The answer of defendant was a general denial, plaintiff dismissing as to codefendant St. Louis-San Francisco Railroad Company.

The evidence disclosed that plaintiff went to defendant's station at Valley Park, Mo., at about 4:45 p. m. on the day in question for the purpose of taking passage on one of its passenger trains to St. Louis. This train was due at 5:35 p. m., but was late and did not in fact arrive until 7 p. m. At the time plaintiff had in his possession a ten-ride ticket which entitled him to transportation back and forth on defendant's passenger trains between Valley Park and its Tower Grove station in St. Louis. Plaintiff had been sitting on the curbing at the west end of the station platform at a distance of approximately 30 feet from the track. It was estimated that there were 100 people on the platform at the time. About 6:20 p. m. an eastbound train was observed approaching from the west, which, however, as it later developed, was a through train which did not stop at Valley Park. As soon as he became aware of the approach of this train, plaintiff arose and, with a suit case in each hand, began walking towards the track. He had taken a few steps forward and, according to his own testimony, was within 25 feet of the track (though there was testimony that he was within 4 or 5 feet of it) and facing it when the engine, running at a speed of 50 miles per hour, passed directly in front of him. As it did so, plaintiff observed an object in a cloud of smoke emerging rapidly from the direction about 2 feet in front of him and bounded, first striking the suit case which he was carrying in his left hand and then glancing against his left knee and inflicting painful injuries. After plaintiff had been helped to his feet, a search revealed only the one metal object which was found lying on the ground within a foot of where he had been standing. This object was identified as a guard rail casting or filler block, weighing about 25 pounds, which served no purpose except for use in connection with the structure of a railroad track.

Defendant introduced no evidence, and contends that the court erred in refusing its peremptory instruction in the nature of a demurrer to the evidence requested at the close of plaintiff's case. It argues that at the time plaintiff was injured he was a mere licensee and not a passenger, and that the casualty which brought about his injury was an accident which, even if it happened in the manner relied upon by plaintiff, could not reasonably have been foreseen or anticipated by defendant, and that therefore defendant was not liable, even if plaintiff should be regarded as a passenger.

In determining whether plaintiff was a passenger or a mere licensee, we are not unmindful that the relationship of passenger and carrier is dependent upon the existence of a contract of carriage, either express or implied. O'Donnell v. Kansas City, St. L. & C. R. Co., 197 Mo. 110, 95 S. W. 196, 114 Am. St. Rep. 753; Schaefer v. St. L. & S. R. Co., 128 Mo. 64, 30 S. W. 331; Schepers v. Union Depot R. Co., 126 Mo. 665, 29 S. W. 712; Banks v. Kansas City Railways Co., 280 Mo. 227, 217 S. W. 488; Galloway v. Kansas City Railways Co. (Mo. Sup.) 233 S. W. 385; Canaday v. United Railways Co., 134 Mo. App. 282, 114 S. W. 88. Such relationship is held to begin when the prospective passenger puts himself in the care of the carrier, or directly within its control, at the proper place and in a proper manner to be transported, with the bona fide intention of availing himself of its facilities for transportation, and is accepted as such by the carrier. Nolan v. Met. Street Railway Co., 250 Mo. 602, 617, 157 S. W. 637; Edmondson v. Mo. Pac. R. Co. (Mo. App.) 264 S. W. 470; Albin v. Chicago, R. I. & P. R. Co., 103 Mo. App. 308, 77 S. W. 153; Hutchinson on Carriers (3d Ed.) § 1006; 10 C. J. 611; 4 R. C. L. § 489. Of course, no formal act of delivery of the passenger's person into the custody of the carrier, or of acceptance by such carrier of the passenger, is required; the existence of the relationship being in many cases implied from all the attendant circumstances. Banks v. Kansas City Railways Co. and Schepers v. Union Depot R. Co., supra; Lindsay v. St. Louis & H. R. Co. (Mo. App.) 178 S. W. 276.

Applying the above tests to the stated facts in the case at bar, we find substantial evidence that plaintiff had gone upon defendant's premises to take passage on one of its passenger trains; that his entry upon the premises was made in the proper manner and within a reasonable time before the time said train was due to arrive; that he awaited the arrival of the train upon defendant's station platform, where the other passengers were gathered; and that he had in his possession a valid ticket, issued by defendant, entitling him to transportation over its lines. Accordingly, in the light of these circumstances, we are clearly of the opinion that the argument that plaintiff was not a passenger, but only a licensee, is wholly untenable.

But even though plaintiff was a passenger, unless the object which struck him came...