116 Mo. 81 | Mo. | 1893
This action was commenced on the thirteenth day of September, 1888, for a personal injury alleged to have been caused by the negligence of defendant June 29, 1883. To avoid the plea of the statute of limitations, it is averred, that the plaintiff was a minor when he was hurt and up to the twenty-second day of August, 1888.
The following averment states the pith and substance of plaintiff’s cause of action:
“Plaintiff states that on the twenty-ninth day of June, 1883, he was riding on the cars of defendant, propelled and drawn by a locomotive of defendant on the said road of defendant, and that the defendant, not regarding its duty in that behalf, did not use due care in causing the plaintiff to be conveyed over their said road, and conducted itself so carelessly and improperly in that behalf by reason of the careless default and improper conduct of the defendant by its agents, servants
The answer was a general denial and contributory negligence. The circuit court sustained the demurrer to the evidence. The plaintiff assigns as errors the sustaining of the demurrer, and the exclusion of certain •evidence which he offered.
With the exception of plaintiff’s father and Dr. Eord, whose evidence related only to the nature and •extent of the injuries, the plaintiff’s own testimony is all the evidence in the case, and as the question is raised as to its sufficiency to justify the court in sending the cause to the jury, it is deemed best to incorporate it substantially in full.
Plaintiff testified that at the time of the accident he was at work for his father in a meat market. That his father was a butcher; that-he, the plaintiff, was sixteen years old; that on the twenty-ninth day of June, 1883, he and another boy, named Dillon, got on a freight train of the Missouri Pacific Railway going to Kirk-
“We got into the car in a space of six or eight feet in the end of the car and sat there. We rode some ways, and we came close to Webster, and the brakeman came along, and dropped his light down there and saw us sitting there and he says: ‘Where are you going!’ We said, ‘To Kirkwood.’ He says ‘come out of there,’ and we came out on top of the car, and he says, ‘have you got any stuff?’ And I says, ‘Not a cent.’ He says, ‘Have you got any tobacco?’ And Isays, ‘No.’ He says, ‘Have you got any pistol or a knife, or anything of that kind?’ And I says, ‘No, sir.’ Then he'says, ‘Walk!’ I told him we would get off when the train stopped, and he says, ‘The train ain’t goingto stop, and you get right off here.’ About this time we were passing the depot at Webster, and my partner and I were afraid to get off. The train was running between eight and ten miles an hour and I walked over the ladder, and the brakeman says, ‘Now get down,’ and I got down on the ladder, and I says, ‘If the train stops I will get off,’ and he says, ‘No you get off anyhow.’ I told my partner we had better get off, and he went to the next car to get down on the ladder too. Than the brakeman came to my ladder and stepped on my fingers with his boots, and told me to get off. I had one hand holding on the car, andhesays, ‘Now get off.’ Iwas afraid to get off, I was afraid I would fall in the culvert, and I said, ‘Wait until the train slacks up,’ andhesays, ‘No you get off,’ and he stepped on my 'fingers again with his big shoes, and I could not stand that and I had to lét go and I fell alongside of the track where there was a tie stuck out just at the end of the walk, and my foot got under the
The plaintiff then testified that the train ran over his small toe, and across his foot just below the instep. It peeled off all the flesh of the foot and left nothing but the skin. The plaintiff said that he would be twenty-three on the twenty-second of August, 1890.
Plaintiff having testified that a brakeman ejected him from the train, was asked this question by his attorney:
“Now tell the jury what the duties of a brakeman on a freight train are?
By Mr. Herbel, attorney for the defendant: I object to that if the court please.
By the Court: I'think the objection well taken.
Q. By Mr. Webb: You know what the duties of a brakeman on a freight train are? A- Yes, I think I know.
By Mr. Herbel: Wait a minute. We want to know your source of knowledge, what your experience has been. A. I was told by either the brakeman or the fireman.
By Mr. Herbel: I object to his stating that, as incompetent.
Q. By Mr. Webb: Are you acquainted with many employees of railroad companies? A. Yes, I know several of them.
Q. Of the Missouri Pacific Railroad Company especially? A. I know employees of the Missouri Pacific, yes, sir.
Q. Have you seen any of the workings of the employees — what they do and what their business is?
A. Yes, I have seen them often enough, if you go around the railroad you can see them at any time at the levee, and at any place you can see them.
Q. Both at the levee and at the depot, and on the trains? A. Yes, sir.
Q. Now state what are the duties of a brakeman?
By Mr. Herbel: I object to that as incompetent.
By the Court: Objection sustained. To which action of the court the plaintiff then and there duly excepted at the time.
By Mr. Webb: Q. Have you any other means of knowing what the duties of brakemen are? A. Only what I have been told and what I have seen.
Q. What experience have you had besides seeing them about here? A. I have had no experience only what I have seen and what I have heard from other people.
Q. Who have you heard from? A. I have been told so by different railroad men about these duties what they are supposed to be.
Q. Have you been on trains when they were working and attending to their business? A. Yes, sir.
Q. How often? A. Not very often-, a couple times, I suppose.
Q. Have you had any conversation with these railroad men while they were engrossed in business, while they were attending to their duties'? A. Yes, I spoke to several brakemen several times when they were working; and very often I would go to the train in the yard and get on and ride to Grand avenue.
Q. Have you often gone from the yards on the train out to Grand avenue? A. Yes, sir.
Q. And you have associated with these men? A. Not associated with them. No, sir; I cannot exactly say that.
Q. Have you been riding on the trains with them?
A. Yes, sir.
Objected to. Objection sustained. To which action of the court the plaintiff then and there, duly excepted at the time.
Q. While riding on the trains with these men, and conversing with them, I will ask if you have noticed their habits and their actions while engaged in business? A. Yes, sir.
A. I have seen them put other people off.
By Mr. Herbel: I object to that.
By Mr. Webb: He was asked how he had any knowledge of the rules of the railroad company. I want to know how he knew that. It is brought out by the question of Mr. Herbel, that he knew he would be removed by the brakeman, or other employee, if he ■did not get off the car.
By the court: He may answer how he knows.
A. When I was going to school I was around the railroad yards and saw it every day, that the brakemen put men off. They piit boys off, and men too, who jumped on the train. I suppose they were trying to steal a ride, and they would put them off. That is how I know it.
Q. That is a matter that arose from your experience, that anybody might obtain that goes around a railroad yard and sees it? A. Yes, sir.
Q. He sees brakemen remove trespassers and persons getting on the train? A. Yes, sir.
Q. It is a matter of universal knowledge of anybody who observes the workings of a railroad? A. Yes, sir.
Q. I will ask you, Mr. Farber, whether each brakeman has charge of the entire train, and what their duties are!
Objected to. Objection sustained. To which action of the court the plaintiff then and there duly excepted at the time.
On cross-examination he testified, that it was a dark night when he got on the car; that he and his friend, Dillon, got on the car to steal a ride. He didn’t pay any fare, and did not intend to. His purpose in going to Kirkwood was to get peaches and go fishing the next day. That he knew he must hide himself from the employees on the train in order to be carried on it. The car was an ordinary stock car, loaded with lumber. He climbed up the brakeman’s ladder and entered through a manhole on top of the car. There was a space of eight feet square not occupied by the lumber. There were no lights on the train. He admitted that he had been arrested on various occasions for different offenses; that just prior to this trial, he was arrested at the instance of his father, because he would not give up the keys to his father’s butcher shop, which was being pilfered by somebody.
I. The petition does not allege that plaintiff was a passenger on defendant’s train when he was ejected. It simply avers that he was riding on the car of defendant, and that its servants in the course of their employment violently pushed him off.
The evidence conclusively shows that he was not a passenger, either for hire or by invitation or sufferance of the servants of defendant. He testified that he boarded the train in the night without the knowledge of the conductor or other employees on the train. It was a freight train, not designed for the transportation of passengers. Moreover, he distinctly testified that he intended to steal a ride, and purposely hid himself in a
That relation of itself places the carrier under the obligation to carry the passenger safely and properly and treat him respectfully; and holds him responsible for the conduct of his servants, to whom he entrusts 'the performance of his duty. He is bound to protect his-passengers from violence and insults by strangers and co-passengers, and a fortiori against the violence and insults of his own servants. Goddard v. Railroad, 57 Me. 202; Bryant v. Rich, 106 Mass. 180; Craker v. Railroad, 36 Wis. 657; Sherley v. Billings, 8 Bush, 147; Railroad v. Flexman, 103 Ill. 546. But here the defendant owed plaintiff no duty of care by reason of any special relation assumed or existing between him and the company, save that it would not willfully or recklessly injure him after discovering him on the train.
The contention of counsel for plaintiff that the defendant’s railway was a public highway, and that, therefore, he was authorized to ride on its cars without its consent, and without the payment of fare, cannot be tolerated for a moment, and has been expressly repudiated by this court in Hyde v. Railroad, 110 Mo. 272, where it was said: “The declaration in the constitution that railways in this state are ‘public highways’ (Constitution, 1875, art. 12, sec. 14), in the connection in which it appears, obviously was not intended to throw them open as thoroughfares for pedestrians. Its object was to lay a foundation for certain kinds of legislative regulation of railways, but not to change the nature of the use of railroad property, or to divert it from the general purposes for which it was designed. ”
In Whitehead v. Railroad, 99 Mo. 263, Black, judge, speaking for the whole court, said: “There can be no doubt but a railroad company being a carrier of freight and of passengers may use separate, trains for freight and for passengers, and may exclude freight from one, and passengers from the other.” Railroad v. Bartram, 2 Ohio St. 459; Dunn v. Railroad, 58 Me. 187.
The claim of the appellant is utterly without merit, and if permitted would result in utter confusion, and destroy the efficiency of the railroads in their service as the great public carriers, both of freight and passengers. v
II. It being then an uncontroverted fact that plaintiff was wrongfully, and without any lawful right whatever, on the train, the liability of the defendant to him for an injury he may have received, is not founded upon the duty and obligations imposed by the law of common carriers, but is referable to the law of agency.
It was said in Snyder v. Railroad, 60 Mo. 413, that “it is firmly established [in this state] that the master is civilly liable for the tortious acts of his servant, whether of omission or commission, and whether neg^ ligent, fraudulent or deceitful, when done in the cowrse of his employment, even though the master did not authorize or know of such acts, or may have disapproved or forbidden them.” Garretzen v. Duenckel, 50 Mo. 107. Indeed the doctrine of the old eases as announced in M’Manus v. Crickett, 1 East’s Term Reports, 106, no longer obtains in the courts of this state.
Had he been shown to have such authority, and had he exercised it in the cruel and unjustifiable manner, charged by plaintiff, no doubt would be •entertained as to.the company’s liability. Brill v. Eddy, 115 Mo. 596. But the mere fact that plaintiff was injured by the tortious act of the brakeman while Be was in the employ of defendant cannot render •defendant liable. The wrong perpetrated must pertain to the particular duty of the brakeman; in other words ■the act must he within the scope of Ms employment, and this the evidence failed to show. Stringer v. Railroad, 96 Mo. 299; Sherman v. Railroad, 72 Mo. 63-66; Flower v. Railroad, 69 Pa. St. 210; Coal Co. v. Heeman, 86 Pa. St. 418; Marion v. Railroad, 59 Iowa, 428.
We may add there is not the' slightest evidence of .any ratification of the act of the brakeman by defendant.
The following colloquy between plaintiff and his counsel will indicate the extent of his knowledge of the subject:
UQ. By Mr. Webb: Have you had any other means of knowing what the duties of a brakeman are?
A. Only what I have been told here, and what I have seen.
“Q. What experience have you had besides seeing them about here? A. I have had no experience only what I have seen and heard from other people.
“Q. Whom have you heard from? A. I have been told so by different railroad men about these duties— what they are supposed to be.
“Q. Have you been on trains when they were working and attending to their business? A. Yes.
“Q. How often? A. Not very often; a couple of times, I suppose.”
Now, it is an elementary rule of evidence that “the best evidence of which the case in its nature is susceptible” must be adduced. G-reenleaf on Evidence [13 Ed.], 582. It is very clear that plaintiff’s experience did not entitle him to speak of the duties of a brakeman. He says he had only been on the trains a couple of times, and if we are to judge from his other evidence his time was principally occupied in hiding from the view of the employees, rather than studying the nature of their duties. What position the other railroad men occupied, or tvhat they kne%o of the brakeman’s duties, was not disclosed, and was obviously hearsay. But it is clear that this evidence on its face indicated there was better evidence.
The rules of the company, the general superintendent, who employs them and issues their orders,
This cause was tried in St. Louis, where the general offices of the defendant are situated. Very slight diligence could have secured the attendance of the superintendent or his deposition, a copy of the rules, and of brakemen employed in the same line of service. We find no error in the ruling of the court on this point. The judgment is affirmed.