71 Mo. App. 631 | Mo. Ct. App. | 1897
Lead Opinion
Judgment reversed.
Dissenting Opinion
(dissenting). — The complaint alleges that the defendant contracted to carry the plaintiff and the children of Benton school, who might desire to attend a picnic at Forest Park, “from Page avenue and King’s Highway to Forest Park, and from Forest Park to Page avenue and King’s Highway, without change of cars.” On the first appeal the extent of the plaintiff’s evidence was that the defendant agreed to take the children and plaintiff “around to Forest Park without change.” We held that this evidence did not tend to prove a contract to convey to Forest Park and back without change of cars. However, as there was some evidence tending to prove that Foulk, an agent of the defendant at Forest Park, directed "the plaintiff and the children to take certain cars on their return trip, which cars he assured them would go direct to the corner of Page avenue and King’s Highway, we held that the plaintiff was entitled to have the case submit
Plaintiff’s second instruction told the jury in substance that if Foulk was the agent or employee of defendant in starting and managing cars at the end of its line at Forest Park, and that the plaintiff and the school children entered the cars under his direction and upon his assurance that the cars would take them to their place of destination, then there could be a recovery on that theory of the evidence. The evidence is abundant that Foulk was such agent and that he gave the direction. The only question is, whether his duties or authority as manager of defendant’s cars at that end of the line, by necessary implication, included the duty or power to direct persons desiring passage over the road as to the cars they should take or as to the destination of the various cars. As there are many branches or side lines belonging to the defendant’s railway system, in reason there ought to be someone at that end of the line to give such information. This duty in my opinion devolved on Foulk. Therefore I must also dissent from the conclusion reached on this branch of the case.