32 Mo. App. 228 | Mo. Ct. App. | 1888
— The plaintiff brings this action to recover damages for injuries alleged to have been occasioned to her person by the negligence of the defendant. The petition contains two counts, in the first of which it is stated that the injuries were caused by reason of the negligent, unsafe and dangerous condition of the defendant’s roadbed and track, and by reason of the negligent, unsafe and careless manner in which defendant’s train, in which plaintiff was a passenger, was operated; and in the second it is alleged that plaintiff received further injuries by reason of the fact that the defendant negligently, carelessly and wrongfully failed to provide good and sufficient fire to properly warm the car in which the plaintiff was a passenger, thereby causing plaintiff to contract a severe cold.
The answer of defendant to the first count cf the petition is a general denial and the further allegation that the iniuries to plaintiff, if any she received, were
It appeared in evidence on the trial that the plaintiff was accompanying one D. A. Fults, from Sedalia to Kansas City, and, at the time of the accident, that they were riding over defendant’s road upon a free pass, which, together with condition indorsed, was in words and figures following-:
m Q. © ft ft ft ft ft © 0 'S © +=> Pi pl o Ü
THE MISSOURI PACIFIC RAILWAY CO.,
Employe’s trip pass.
NO. H. 2082.
January 20, 1885.
---Pass---
D. A. Fults and Lady,
---from---
SEDALIA TO KANSAS CITY
Over the Missouri Pacific Ry.
Account of OPERATOR AND CLERK.
Void unless used on or before January 25, 1885. Not valid unless countersigned by
B. P. PHELPS. H. M. HOXIE, Third Yice-President.
ft © ft © m <D rg O 0 1C CO 00 <0 rQ CD O ft xa © ‘Ph ¡*¡ ft
Indorsement on back as follows:
This pass is not transferable.
The person accepting it assumes all risks of accidents and damages without claim upon the company.
Forfeited if presented by other than the person named.
That, at a point between Sedalia and Kansas City, the car in which the plaintiff was seated, on account of a broken rail, was derailed and thrown down an embankment, in consequence of which she received the injuries complained of in the first count of her petition, the nature of which was testified to by herself and other witnesses.
That after the receipt of the injuries occasioned'by this accident a car in which the plaintiff was seated was not sufficiently warmed, which caused plaintiff to contract the cold and inj ury complained of in the second count of her petition.
At the close of the plaintiff’s evidence, the court refused to give an instruction asked by defendant, in the nature of a demurrer to the evidence, and, on behalf of plaintiff, in substance instructed the jury that it was the duty of the defendant to have done all that human care, vigilance, skill, ingenuity and foresight could have devised, consistent with the mode of conveyance and the practical operation of their road in providing safe coaches and machinery, track and roadway, and in keeping the same in repair.
Among others the court gave the following instruction on part of the plaintiff:
“Even though the jury may believe from the evidence that plaintiff did not pay her fare for riding on said train, but was a gratuitous passenger, still the jury are instructed that such fact does not affect the issues in this case, and is no defense.”
The theory of defendant’s counsel, in the trial below, was, and their argument in this court is, that the plaintiff, being only a gratuitous passenger, riding on a free pass containing the stipulation indorsed thereon, to assume all risks of accidents and damages without claim upon the company, the defendant was only required to exercise ordinary care in transporting her, and was not compelled to exercise that extraordinary care and skill required of common carriers in transporting passengers for hire. The conflict between this position and the instructions given by the trial court as hereinbefore indicated and quoted, presents the only question for our consideration.
This question is by no means free from embarrassment, and so far as we have been able to discover, has never been directly passed upon by the supreme or appellate courts of this state. The nearest approach to it was in the case of Carroll v. Railroad, 88 Mo. 239, where it was held that a drover transported over a railroad on a pass for the purpose of taking care of his stock on the train, was a passenger for hire and the railroad company could not stipulate for exemption from liabilities to him caused by its negligence ; and in the case of Lemon v. Chanslor, 68 Mo. 340, where it was decided that a gratuitous passenger, who received injuries while riding in defendant’s hack, might maintain a suit for damages caused by the carrier’s negligence. These cases differ from the one before us in that the former contained an element of consideration received by the railroad company, and that the latter contained no stipulation or agreement on part of the plaintiff to exonerate the defendant from liability as a common carrier.
The plaintiff here was not merely a gratuitous passenger, i. e., a passenger carried without payment of fare or other consideration, but she was a passenger upon
The case of Griswold v. Railroad, 53 Conn. 371, was in all respects similiar to this. The plaintiff’s intestate, a boy sixteen years old, was, at the time he received the injuries which caused his death, riding on a free pass which provided that the person accepting it assumed all risks of accident, and expressly stipulated that the company should not be liable under any circumstances, whether of negligence of their agents or otherwise, for any personal injury. This being interposed by the company in defense, that court held the defense good and the company not liable for any degree of negligence. In reaching this conclusion the court reasoned as follows : “Where a master uses due diligence in the selection of competent servants, and furnishes them with suitable means and machinery to perform the service in which he employs them, he .is not answerable to one of them for an injury received in consequence of the negligence of a fellow-servanf, while both are engaged in the same service. Here the rule of respondeat superior is waived, and it is generally put on the ground of implied contract, and if a waiver may be implied in such a case, •why not give effect to an express agreement in the case of a free passenger? ” And as a reason for holding such a stipulation good against all degrees of negligence the court said: “The foregoing reasoning, as it seems to us, will also furnish a complete answer to the claim that the defendant must be held liable on account of the gross negligence of its servants, for it is manifest that the principal is no more culpable in the one case than in
The case of Annes, Adm'x, v. Railroad, 67 Wis. 46, was also similar to the one at bar. The plaintiff’s intestate, at the time he received the injuries which caused his death, was riding on a free pass with a stipulation indorsed upon it exempting the company from all liability, under any circumstances, from negligence of the company, their agents or otherwise. The accident and consequent injury in that case were occasioned by the running of one train into the rear end of another train which was stalled in the snow upon defendant’s track. The court, after an extensive review of authorities, decided that the contract or stipulation on the back of
Decisions similar to that of Annes v. Railroad, supra, have been rendered in the following cases: Wright v. Goff, 6 Ind. 416; Railroad v. Remmy, 13 Ind. 518; Railroad v. Mundy, 21 Ind. 48; Thayer v. Railroad, 22 Ind. 26; Railroad v. Read, 37 Ill. 484, and other early cases, which we deem it unnecessary to cite.
The case of Jacobus v. Railroad, 20 Minn. 125, is a case in every respect like the one at bar, and the two hereinbefore discussed. The court in that case held that the defendant was bound to exercise the same degree of care for- a gratuitous passenger as would be required in the case of a passenger paying fare, and should be held to the same liability, and that the condition indorsed upon the pass did not absolve the defendant from any degree of that liability. The court argued as follows : “There are two distinct considerations upon which the stringent rule as to the duty and liability of carriers of passengers rests. One is the safety of the passenger on his own account, and the other is regard for his safety as a citizen of the state. The latter is a
The doctrine in the Jacobus case is in harmony with that declared in the following cases: Railroad v. Heaton, 37 Ind. 448; Railroad v. Selby, 47 Ind. 471 (which cases expressly overruled the earlier Indiana cases hereinbefore cited); Goldey Railroad, 6 Casey, 242; Railroad v. Henderson, 1 P. F. Smith, 315; Railroad v. Butler, 57 Pa. St. 335; Railroad v. Hopkins, 41 Ala. 486. We have said sufficient to show how irreconcilable is the conflict between the decisions of courts of high authority concerning this question.
Counsel for appellant are conservative enough to assume the middle ground and only ask us to relieve the defendant from such liability as may have attached to a failure upon its part to exercise ordinary care. In other words, to draw a distinction between “gross” negligence and “ordinary” negligence. It seems to be conceded that plaintiff was a passenger and that the relation of common carrier and passenger did exist
The duty which a common carrier owes to a passenger is thus defined by Wagner, J. : “They are not, as in the case of carriers of goods, insurers and responsible for all damages which do not fall within the excepted cases of the acts of God and the public enemy, but they are bound to the utmost care and skill in the performance of their duty. The degree of responsibility, therefore, to which carriers of passengers are subjected, is not ordinary care which will make them liable only for ordinary neglect, but extraordinary care, which renders them liable for slight neglect. Public policy and safety require that they should be held to the greatest possible care and diligence, and that the personal safety of the passengers should not be left to the sport of chance or the negligence of careless agents.” Huelsenkamp v. Railroad, 37 Mo. 538.
Whatever the form of expression has been, the care and circumspection required of carriers of passengers, especially by rail, have been the utmost which could be exercised, under all the circumstances, short of the warranty of the safety of the passengers. Hutchinson on Carriers, sec. 502. And it is well settled in this state, whatever may be the rulings elsewhere, that any negligence in such cases is gross negligence — or to state it differently, there are no degrees of negligence in such cases, where the passenger is without fault, as in this case. McPheters v. Railroad, 45 Mo. 26; Lemon v. Chanslor, supra; Railroad v. Horst, 93 U. S. 281; Steamboat v. King, 16 How. 469; Railroad v. Lockwood, 17 Wall. 357.
The law attached this responsibility to the employment of defendant; when it assumed the calling it had no power over the duties which the law annexes to that calling. To permit it, in this instance, to maintain its relation to plaintiff as a common carrier and yet to
As a result of our investigations we are of the opinion that the trial court properly instructed the jury, that the pass read in evidence was no defense.
Its judgment is, therefore, affirmed.