Wagner v. Missouri Pac. Ry. Co.

• Citation: 10 S.W. 486,97 Mo. 512
• Parties: WAGNER v. MISSOURI PAC. RY. CO.
• Decision Date: 04 February 1889
• Court: United States State Supreme Court of Missouri

10 S.W. 486

97 Mo. 512

WAGNER v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri.

February 4, 1889.

1. CARRIERS OF PASSENGERS — INJURY TO PASSENGERS — NEGLIGENCE.

Plaintiff's husband was killed by the derailment of defendant's train, which was a special freight, consisting of an engine, tender, one box, and several flat cars. Deceased and others were riding on a flat car next to the engine, sitting on an improvised seat. The conductor and brakemen knew they were there, and did not warn them that it was dangerous; nor was there danger if the train had not been derailed. Both the conductor and a brakeman told them it was more comfortable in the box car, but they preferred to ride on the flat car. The road was rough, and the engine and tender were reversed, which was dangerous on a rough track, and the train was running too fast for safety, from which facts the accident resulted. Deceased was thrown on the track and killed; no one being injured except those on the flat car. Held, that plaintiff was entitled to go to the jury on the questions of defendant's negligence, and the absence of contributory negligence on the part of deceased.¹

2. SAME — SPECIAL TRAIN — RIGHTS AS PASSENGER.

Though the train, which ran regularly on week days as a mixed freight and passenger, was running specially on the Sunday of the accident, in charge of the usual conductor, and deceased could not of right have demanded to be carried as a passenger on that day, and neither paid nor was asked to pay fare, if the defendant, through its conductor, permitted deceased to ride, it assumed the same duties towards him as if he had been a regular passenger on a train of that character.²

3. PLEADING — COMPLAINT — DEFECT — WAIVER BY ANSWER.

Where a petition, in such an action, fails to state whether the deceased was a passenger at the time of the injury, the defect is waived if defendant, by its answer, puts that question directly in issue, without making any objection to the petition on that ground.

RAY, C. J., and SHERWOOD, J., dissenting.

Error to circuit court, Calloway county; G. H. BURCKHARTT, Judge.

Action by Elizabeth Wagner against the Missouri Pacific Railway Company, to recover for the death of her husband, alleged to have resulted from the negligence of defendant's servants. Verdict for defendant under the instruction of the court, and judgment thereon. Plaintiff brings error.

Edwin Silver and J W. Boulware, for plaintiff in error. T. J. Portis and Smith & Krauthoff, for defendant in error.

BRACE, J.

In this action the plaintiff seeks to recover $5,000 damages for the negligent killing of her husband, Christopher Wagner, by defendant's servants. The petition charges that her husband, on the 18th day of December, 1881, being on defendant's train of cars between the town of Russellville and the city of Jefferson, was injured and did die, and said injury and death resulted from and was occasioned by the negligence of the defendant, its agents and servants, in running and operating its engine and train of cars on which said deceased was, in this, to-wit: That said agents and servants of defendant did negligently, improperly, carelessly, and recklessly operate and run said train, with its engine and tender reversed, over a newly-constructed road-bed at a highly improper, too great, and injurious rate of speed, and did otherwise so carelessly and negligently run and manage said train that part thereof was thrown from the track, and said train was wrecked, in consequence of which negligent, careless, and improper conduct of defendant, its servants and agents, said Christopher Wagner was on said December 18, 1881, injured, and from said injury did on said day die.

The answer to plaintiff's petition was a general denial, and also set up "that deceased was not a passenger on said train of cars, but was wrongfully and unlawfully on said train, and a trespasser thereon; and, further, that said deceased was guilty of negligence, contributing, in whole or in part, to his injuries or death," in this: that he wrongfully got upon the flat car next to the locomotive, which was a dangerous place, and refused to leave the same when requested so to do by the conductor. The replication denied the new matter set up in the answer.

At the conclusion of the plaintiff's evidence, the court sustained an instruction in the nature of a demurrer to the evidence, and the jury returned a verdict for the defendant. Plaintiff's motion for a new trial having been overruled, the case is brought here by writ of error.

The evidence offered by plaintiff went to show that for some time prior to the accident, which occurred on Sunday, December 18, 1881, the defendant had been operating the Jefferson City, Lebanon & Southwestern Railway, between Jefferson City and the town of Russellville; that during this time it ran, Sunday excepted, a daily mixed train, — that is, one carrying both freight and passengers; that on the Sunday of the accident the same train, made up in the usual manner, having same combination or passenger coach, and with the same conductor and crew, as on the week days, was ordered by the defendant to proceed from Jefferson City to Russellville as a special or extra, to take supplies, consisting of iron rails, spike, and the like, for the track-layers engaged south of Russellville in laying track; that about 9 o'clock A. M. it left the depot at Jefferson City, having iron rails, etc., in the freight cars, and a number of persons in its passenger coach, among whom was the deceased. The train proceeded a short distance from the depot in Jefferson City, when its further progress was interrupted by one of the freight cars running off the track. Thereupon the conductor returned to the depot, and while there the persons in the passenger coach got out, and a number of them — among them the deceased — went to the freight car next to the locomotive, which was ahead of the break in the train. This was a box car, loaded with rails, and was the only car taken out by the engine. It had no seats or accommodations for passengers; the combination car and the balance of the train being left at Jefferson City. When the conductor returned from the depot, he told those who had gone to the freight car that they had better not go; that he would not have any cars for them to come back in, and they would have to stay out there. They said they would take the chances of getting back, got in the car, and went to Russellville in it, using the rails in the cars for seats. Of the number who thus boarded this car, the deceased and three others, Berry, Zuendt, and Monning, were killed in the accident which occurred on the return trip. There was no evidence tending to show that the deceased, or any of the party with whom he was, paid or offered to pay fare, or that any fare was demanded of them going or returning. The train, consisting of the locomotive, tender, and the box car, with Wagner, Zuendt, Berry, and others in it, proceeded in safety to Russellville. After the arrival at Russellville, and dinner there, the conductor proceeded to make up the train for the return trip to Jefferson City. He made it up as follows: First, the tender and locomotive, reversed, tender being in lead of locomotive; a flat car next to engine; then a box car; and then several other flat cars.

The evidence shows that the deceased, and the three others who were likewise killed in the accident, took their places on an improvised seat on the flat car next to the engine. The seat was made by those on the car putting the ends of a plank upon two empty spike kegs. The plank was put up to them by the conductor, who requested them, however, to go into the box car, telling them it would be a better place for them to ride. They said they wanted to ride on the flat car to see the country. They made the same reply to the brakeman, who told them that the box car was a better and more comfortable place to ride. The conductor said nothing more, got into the box car, and the train started, and was running at a rate of speed variously...