Wentz v. Chicago, Burlington & Quincy Railroad Co.
| Decision Date | 30 June 1914 |
| Parties | JOHN A. WENTZ v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. E. R. Morrison, Judge.
Affirmed.
Warner Dean, McLeod & Langworthy for appellant; Byron Clark of counsel.
(1) There is no evidence that the defendant was guilty of any negligent act. The announcement of the station and the opening of the vestibule doors as the train approached the depot were not only proper but were required as a matter of convenience to the passengers. The stopping of the train at the crossing was required by law and there was no reason to anticipate that the plaintiff would attempt to alight at that place, especially where there was no station, no lights, no platform, and the conductor himself had not yet alighted, and had not placed the stool to assist the passengers from the car. Union Pacific v. Luck, 79 Kan. 320; Mitchell v. Railroad, 51 Mich. 236; Railroad v Holmes, 97 Ala. 332; Lunsford v. Railroad, 153 Ky. 283; Morris v. Railroad, 53 So. 698; Railroad v. Massey, 53 So. 385; Stewart v Railroad, 146 Mass. 605. The plaintiff in rushing out of the car and down the steps without looking where he was going and stepping off the train in the dark at a place where there was no station, no platform, no lights, and when he could have easily discovered, if he had looked, that the train had not yet reached the station, was guilty of contributory negligence as a matter of law. Farrell v. Railroad, 100 Minn. 361; Hester v. Electric Co., 130 Ga. 454; Mitchell v. Railroad, 51 Mich. 236; Mearns v. Railroad, 163 N.Y. 108; Mearns v. Railroad, 139 F.543; Bartle v. Railroad, 105 N.Y.S. 522; Railroad v. Holmes, 97 Ala. 332; Railroad v. Murray, 113 Ga. 1021; Nagel v. Railroad, 88 Cal. 86; Lunsford v. Railroad, 153 Ky. 283. (2) The court committed error in refusing to admit in evidence the free pass upon which the plaintiff was riding, and the conditions contained on the back thereof. The exclusion of the pass and the conditions thereof deprived the defendant of its constitutional rights. Since the pass upon which plaintiff was riding provided for interstate transportation, the conditions thereof must be construed in accordance with the decisions of the Federal courts. Interstate Commerce Act, being Act February 4, 1887, c. 104, sec. 1, as amended; U.S.Comp. Stat. 1901; Supp. 1911, pp. 1285, 1286; Express Co. v. Croninger, 226 U.S. 491; Railroad v. Harriman, 227 U.S. 672; Mondou v. Railroad, 223 U.S. 54; Railroad v. Vreeland, 227 U.S. 66; Minnesota Rate Case, 230 U.S. 398; Text Book Co. v. Pigg, 217 U.S. 108; Stove Co. v. Vickers, 226 U.S. 215; Railroad v. Elevator Co., 226 U.S. 426. Under the Federal authorities and decisions the provisions and conditions of the pass offered in evidence were and are valid and binding, and the pass and the conditions upon which it was issued should have been admitted in evidence. Railroad v. Adams, 192 U.S. 440; Boering v. Railroad, 193 U.S. 442; Duncan v. Railroad, 113 F.508; 2 White on Personal Injuries on Railroads, secs. 851, 852. Even if the decisions of the Federal court did not control, the question as to the validity of the conditions contained on the pass would have to be determined either by the laws of the State where the pass was delivered or where the accident occurred. Smith v. Railroad, 194 F.79; Shelton v. Railway, 189 F.153; Railroad v. Grom, 142 Ky. 51; Magill v. Railroad, 84 S.C. 416; Hasbrook v. Railroad, 118 N.Y.S. 735; Hughes v. Railroad, 202 Pa. 222; Barnett v. Railroad, 176 Pa. 45; Stamp v. Railroad, 161 S.W. (Tex. Civ. App.) 450; Knowlton v. Railway, 19 Ohio St. 260. The pass was delivered in Wyoming, and the accident occurred in Colorado. Under the statutes of both of those States, which were offered in evidence, the common law of England was and is in force and effect in said States. R. S. Wyoming, 1899, sec. 2695; G. S. Colorado, 1908, sec. 6295. There is no statute or decision in the State of Wyoming, or the State of Colorado, making the conditions contained on the pass invalid, and under the common law of England such provisions are valid and binding. McCauley v. Railroad, L. R. 8 Q. B. D. 57; Hall v. Railroad, L. R. 10 Q. B. D. 437; Railroad v. Adams, 192 U.S. 440; Holly v. Railroad, 119 Ga. 767; Railroad v. Read, 37 Ill. 484; Payne v. Railroad, 157 Ind. 616; Rogers v. Steamboat Co., 86 N. E. (Me.) 261; Quimby v. Railroad, 150 Mass. 365; Kinney v. Railroad, 32 N. J. 407; Welles v. Railroad, 26 Barb. (N.Y.) 641; Wells v. Railroad, 24 N.Y. 181; Perkins v. Railroad, 24 N.Y. 196; Muldoon v. Railroad, 10 Wash. 311; Marshall v. Railway & Light Co., 101 S.W. 419; 2 Hutchinson on Carriers (3 Ed.), sec. 1075; Griswold v. Railroad, 53 Conn. 371; Duncan v. Railroad, 113 F.508; White on Personal Injuries on Railroads, secs. 851, 852, note 39, pp. 1258, 1259. The court in refusing to admit in evidence the pass and the conditions contained on the back thereof, deprived the defendant of its property without due process of law, in violation of the Fourteenth Amendment to the Constitution of the United States, and in violation of section 30 of article 2 of the Constitution of Missouri, and also abridged the privilege of the defendant as a citizen of the United States to contract, in violation of the Fourteenth Amendment to the Constitution of the United States, and impaired the obligation of the contract as contained in the provisions and conditions on the back of said pass in violation of section 10 of article 1 of the Constitution of the United States. Pritchard v. Norton, 106 U.S. 124; Hovey v. Elliott, 167 U.S. 409; Calhoun v. Fletcher, 63 Ala. 570; Zigler v. Railroad, 58 Ala. 594; Jensen v. Railroad, 6 Utah, 253; Dorrance v. Dorrance, 242 Mo. 651; Text Book Co. v. Pigg, 217 U.S. 91; Ex parte Young, 209 U.S. 123; Hoke v. Henderson, 15 N.C. 16.
Boyle & Howell and Joseph S. Brooks for respondents.
(1) The court did not err in overruling the demurrer to the evidence interposed at the close of plaintiff's case nor did it err in refusing to give to the jury the peremptory instruction requested by the defendant at the close of the entire case. 2 White's Personal Injuries on Railroads, sec. 704; McNulta v. Eusch, 134 Ill. 46; Railroad v. McCormick, 124 Pa. St. 427; Railroad v. Davis, 103 S.W. 603; McGee v. Railroad, 92 Mo. 218; Weber v. Railroad, 100 Mo. 194; Grace v. Railroad, 156 Mo. 295; Beach on Con. Neg., p. 173, and sec. 23, p. 71; Kearney v. Railroad & Nav. Co., 59 Ore. 12; Crandall v. Railway, 96 Minn. 434. (2) The court did not err in refusing to admit in evidence the free pass upon which the plaintiff was riding and the conditions contained on the back thereof, nor did the exclusion thereof deprive the defendant of any of its constitutional rights. The general doctrine is that one who is accepted for transportation as a passenger without any compensation, is nevertheless entitled to all the care and protection which the carrier is under obligation to furnish paying passengers. 5 Am. & Eng. Ency. Law, p. 565; Lemon v. Chanslor, 68 Mo. 340; Dorsey v. Railroad, 83 Mo.App. 528; Buck v. Railroad, 46 Mo.App. 555; Railroad v. Derby, 14 How. 468; 6 Cyc. 544; Bryant v. Railroad, 53 F.997; Frillingham v. Transit Co., 102 Mo.App. 559; Whittaker v. Railroad, L. R. 5 C. P. 464; Weller v. Railroad, L. R. 9 C. P. 126; Shohoney v. Railroad, 223 Mo. 684; Tel. Co. v. Pub. Co., 181 U.S. 92; 8 Cyc. 385; Interstate Com. v. Railroad, 145 U.S. 263; U.S.v. Worrell, 2 Dallas, 382; Smith v. Alabama, 124 U.S. 465; Livingston v. Moore, 7 Pet. 469; Davis v. Stouffer, 132 Mo.App. 555.
This suit was instituted by the plaintiff in the circuit court of Jackson county against the defendant to recover the sum of $ 1950, damages, for personal injuries alleged to have been sustained by him through the alleged negligence of the company.
A trial was had before the court and a jury, which resulted in a verdict and judgment in favor of the plaintiff for the sum of $ 800. From this judgment the defendant duly appealed the cause to this court, because of certain constitutional questions involved.
The facts are practically undisputed and are substantially as follows:
The appellant was a railroad company duly organized and incorporated under the laws of Illinois, and had, among others, a line of tracks running through the States of Wyoming, Colorado, Nebraska and Missouri.
The respondent was a resident of Wyoming and wished to go to Kansas City, Missouri. In order to so do he requested his son, an employee of appellant, to procure for him a free pass over said road to Kansas City, which the son did.
This pass entitled respondent to passage from Torrington, Wyoming, to Kansas City, Missouri. Upon the back of said pass there was printed the following provisions, which respondent signed:
The respondent, on November 8, 1909, entered one of appellant's passenger trains, at Torrington, with the intention to go to Kansas City, upon the supposed authority of the pass mentioned; one Gilchrist, slightly acquainted with respondent, accompanied him on said trip, both occupying the same seat -- the respondent occupying the end of the seat next to the aisle of the car. Upon arriving at or near Sterling, Colorado, the conductor of the train, or some...
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