149 Mo. App. 397 | Mo. Ct. App. | 1910
This action was brought by the plaintiff for alleged personal injuries, and, upon trial, he recovered judgment for two thousand dollars. The defendant in the trial court has appealed.
On January 30, 1905, the respondent shipped two car loads of stock from Senath, Missouri, consigned to the National Stockyards, East St. Louis, Illinois. Respondent accompanied the stock. After the train had left Cape Girardeau, a point on the route, a bridge gave way and the engine and one or two cars of the appellant went down in the wreck. The respondent, as stated, was a passenger on the train, accompanying his
The petition charges substantially the foregoing facts; also that the defendant is a corporation operating a railroad as a common carrier; that plaintiff shipped the stock and accompanied the same to market, and
The answer was a general denial and a plea of contributory negligence.
It is claimed by the appellant that the petition is insufficient because it does not aver that the act complained of was one authorized by the master or done by the servant while within the scope of his employment; and, further, that the conductor in charge of the train had no authority, express or implied, to request passengers to assist him in taking care of the appellant’s property.
This objection to the petition — that it does not aver that the master authorized the act complained of — is based upon an entire misapprehension of its contents. The petition in so many words charges that the act of the conductor in calling upon the plaintiff to aid, in the manner aforesaid, under the circumstances aforesaid, was within the scope and reach of the employment of said agent of the defendant.
The law in this State is well settled and it has been uniformly held that it is not necessary for the petition in terms to charge that the act of the agent was within the scope of his authority; if the petition charges facts which show that the relation of passenger and carrier existed at the time, the liability is sufficiently alleged. [McPeak v. Mo. Pac. Ry. Co., 128 Mo. 617, 30 S. W. 170.] In the case just cited, it is stated that while the servant to bind his employer must be in the line of his duty to such employer, yet if the petition states the existence of such a relation from which that duty necessarily arises, it is sufficient without further averment.
The petition in this case fully meets every requirement of good pleading, and the evidence supports the verdict. Plaintiff’s injuries were the proximate result of the negligent acts of the conductor during the contin
In this case, at the time the request was made by the appellant’s conductor to the plaintiff, undoubtedly the relation of passenger and carrier existed, for at such time plaintiff was still within the caboose of the appellant. But the plaintiff did not cease to be a passenger, although alighting or attempting to alight from the train before he reached his destination. A temporary de
It is, indeed, suggested by the appellant that tbe plaintiff was not required, on the conductor’s invitation, to go to the rescue of its endangered property; but because the plaintiff, a passenger, was called from a place of safety into a place of danger by the conductor in charge of the train to assist such conductor in looking after the property of the company and the lives and safety of the employees, and because plaintiff heeded this call of humanity, and at the invitation of the conductor, alighted from the train to go to the rescue of such property and employees, the defendant company will hardly be heard to urge that it consequently incurred no liability because its conductor was not acting within the scope of his authority. The relation of passenger and carrier, as we have stated, existed, and from that relation springs the duty of the defendant company. Assuming that it is true, as claimed by the defendant, that the conductor in charge of the train had no express authority to require passengers on his train to go forward to the Avreclc and assist him in taking care of its property, it must be remarked in this connection that the plaintiff himself had two cars of stock on that train, and he recognized his duty to look after this stock and ascertain its condition. He was interested in having his stock reach its destination safely, and in being himself safely transported. Under these circumstances, his act was that of a prudent and reasonable man and was justified by the conditions which surrounded him, and was not the wrongful interference and intermeddling with business in which he had no concern. [McIntire Ry. Co. v. Bolton, 1 N. E. l. c. 335.] In complying with the conductor’s request at the time and place and under the conditions surrounding the cars, plaintiff, without fault on his part, received serious personal injuries. The conductor unquestionably was acting at the time within the scope of his authority, and
We have examined appellant’s assignment that the damages assessed by the jury — two thousand dollars— were excessive. On careful scrutiny of the nature and extent of the injuries sustained by the plaintiff, and' the pain and suffering necessarily undergone by him, we are unable to say that such an assessment of damages showed bias or prejudice on the part of the jury.
Finding no error in the record, the judgment is affirmed.