Whitehead v. St. Louis, I. M. & S. Ry. Co.

• Decision Date: 10 June 1889
• Court: Missouri Supreme Court
• Parties: WHITEHEAD v. ST. LOUIS, I. M. & S. RY. CO.

11 S.W. 751

99 Mo. 363

WHITEHEAD v. ST. LOUIS, I. M. & S. RY. CO.

Supreme Court of Missouri.

June 10, 1889.

CARRIERS — INJURIES TO PASSENGERS — AUTHORITY OF AGENT — NEGLIGENCE — INSTRUCTIONS.

1. In an action for an injury alleged to have occurred while plaintiff was a passenger in defendant's caboose attached to a freight train, the petition need not allege that defendant's agent in charge of the caboose was authorized by defendant to carry passengers.

2. Where plaintiff was riding in the caboose by consent of such agent, it cannot be said that defendant owed him no duty, though he was there against defendant's rules.

3. The consent of the conductor, who had entire charge of the train, to plaintiff's riding thereon, was within the scope of his authority so as to render defendant liable for the injury if it resulted from lack of ordinary care on the part of defendant's servants, though the conductor was forbidden to carry passengers on that train, and though plaintiff was permitted to ride without payment of fare.

4. It appeared that the caboose in which plaintiff was sleeping when injured had become detached from its engine and train and was resting at the foot of a long down grade, when the forward part of a freight train which had separated, and become unmanageable, ran into it from the rear, causing the injury. The trainmen on the caboose knew that there was a freight train in the rear; that it would reach them on a long down grade; that freight trains were liable to become detached, when they would not be under control; and that there was frost on the rails. The rear train could have been heard for two miles, but the trainmen flagged it only a fourth of a mile from the caboose, without warning plaintiff. Held, that they were guilty of gross negligence.

5. Where an instruction requires a finding that plaintiff was on the train with the knowledge and consent of the agent in charge of it, it cannot be objected that it does not submit the question whether he was rightfully on the train.

Appeal from circuit court, Washington county; JOHN L. THOMAS, Judge.

T. J. Portis and Geo. H. Benton, for appellant. Dinning & Byrns, for respondent.

BLACK, J.

Plaintiff, by his guardian, brought this suit to recover damages for personal injuries, and recovered a judgment for $5,000, from which defendant appealed. As objections are made to the petition itself, the sufficiency of the evidence to support the verdict, and to the giving and refusing to give instructions, it is necessary to deal somewhat in the details of the case. The petition states that plaintiff entered a caboose car attached to one of defendant's freight trains in which it carried passengers, and that the defendant's agents permitted plaintiff to enter the car as a passenger, and then undertook to carry him from De Soto to Belmont. The circumstances of the accident are then set out, coupled with various allegations of negligence on the part of defendant, which circumstances will appear from the following statement of facts as disclosed by the evidence: Frey was a brakeman on the train in question, and boarded with the plaintiff's mother at De Soto. The plaintiff, a lad 14 years of age, desired to go over the road with Frey, and the plaintiff's mother gave her consent, provided the conductor would permit him to go. Frey and the boy got on the freight train at De Soto at about 7 o'clock in the afternoon, at which time the train left. It does not appear what was said to or by the conductor, but it does appear that the boy remained in the caboose without objection. The boy's presence in the caboose, and his purpose to make the trip without the payment of fare, was known to the conductor, and the only inference to be drawn is that he gave his consent to the project. At about 2 o'clock in the morning, and some 50 miles distant from De Soto, the train, which was composed of 22 loaded freight cars and the caboose, reached the top of a hill. As it passed over the hill the caboose and four cars became detached, leaving the conductor, two brakemen, and the boy in the caboose. The engineer did not discover the loss of a part of his train until he began to ascend another grade. To avoid a passenger train he went on to a station five miles distant, and there got orders, and returned with the engine to get the lost cars. In the mean time the caboose and four cars came to rest at the bottom of the grade, some two miles from the place where the train parted. The boy was then asleep in the caboose to the knowledge of the conductor and two brakemen, but was not waked up by them. While the caboose was at rest, one brakeman went forward to signal the engine on its return. The other went about a quarter of a mile up the hill to flag another freight train, which was known to be in the rear. It appears this rear freight train had met with a like accident at the top of the hill, and the forward part of the train, composed of some 16 or 18 cars, had but one brakeman on it, so that the train was not under the control of the engineer. He says he saw the signal when going down and around a curve, and that he resorted to all means at his command to bring his train to a halt, but could not stop it, and it ran into the caboose. In the collision the boy's arm and leg were broken. The leg had to be amputated. The boy was still asleep. The evidence fails to show what the conductor was doing, save that he was present at the time of the accident. Considering the grade, frost on the rails, and the short distance at which the signal was displayed, it is left in doubt whether the train would have been stopped in time to avoid a collision had the accident to it not occurred. The evidence shows that defendant carried passengers for hire on its local freight trains, but not on through freight trains. The train in question was a special through train. The rules of defendant forbade the carriage of passengers on this and like through trains. There is nothing in the outward appearance of the cars or caboose to indicate any difference between through and local freight trains, though the latter are designated on the timecards displayed at stations. On this evidence the court gave the following instruction: "If you find from the evidence that plaintiff was riding on the caboose attached to a freight train of the defendant corporation with the knowledge and consent of the agents and employés in charge of said train, and that these agents and employés knew of the peril to which said Whitehead was exposed, and that he did not know it, and by the exercise of ordinary care could not have known; that these agents and employés knew of his peril in time to have informed him of it, or in time to have removed him out of danger, and that they failed to do either, and that they were guilty of negligence in not informing him of his peril, or in not removing him out of danger, and by reason of such negligence on the part of said agents and employés said Whitehead received the injuries complained...