263 Mo. 180 | Mo. | 1914
The Louisiana & Missouri River Railroad Company (a Missouri corporation) owns a railway line passing through Mexico, Missouri, which the Chicago & Alton Railroad Company (an Illinois corporation) operates as lessee. Respondent having been injured by a train of the latter company, recovered judgment for $1000 against both companies, and both appealed.
In the circuit court the Chicago & Alton Railroad Company in due time filed its petition and bond for
In each answer it is averred that the cause had been removed and the court had no jurisdiction; this is followed by a general denial and a plea that respondent’s injury, if any, was due to his “own fault and negligence directly contributing thereto in whole or in part, ’ ’ and each answer avers that the other answering defendant is improperly joined and that there is a misjoinder of parties defendant. In addition, the answer of the Louisiana & Missouri River Railroad Company avers that by its charter it was authorized to lease and did lease its road in such manner that it was relieved of any liability for damages resulting from the negligence of its lessee; that its charter gave it the power so to do, and that to construe section 1060, Revised Statutes 1899 (now 3078, R. S. 1909) to be applicable to it would impair its charter contract with the State and violate section 15 of article 2 of the Constitution of Missouri and section 10 of article 2 of the Constitution of the United States.
The petition alleges that the respondent was injured while walking along the track at a place where persons were accustomed to walk thereon and “which by common consent had been so used by pedestrians as a public thoroughfare for many years;” that while respondent was walking on and along the tracks in a westerly direction the Chicago & Alton Railroad Company’s servants and agents caused a train in their charge to be backed upon and' over respondent, seriously injuring him; that defendants failed to warn plaintiff “and did not have a brakeman or any agent or servant or employee on the rear of said train while backing, although it was their duty to do so; and that said injuries to plaintiff were caused wholly on account of the negligence, willfulness and carelessness of defendant, The Chicago & Alton Railroad Company, its
There was evidence that respondent about 1:30 p. m. on a clear day, on leaving a mill adjoining the right of way, looked east and saw no train; then started west beside the track and then got upon the track and walked along it, without looking back, until struck' by an Alton train backing in from the east and which had come upon the track upon which respondent was walking by means of a switch several hundred feet east of the point at which respondent was struck. The distance respondent walked upon the track is not definitely fixed but may have been 15 or may have been 50 or maybe 120 feet. The train was stopped three car lengths after it struck respondent but before he was discovered by the trainmen. There was a freight train on a track beside that on which respondent was walking.
Eespondent heard no bell or whistle or warning and first saw the flagman as he (respondent) dragged himself from beneath the front of the car next the tender. The flagman was then upon the west end of the coach nearest the engine. The fireman was in the engine and the conductor was not at hand.
At respondent’s request the court instructed the jury upon the theory that if the track was used as a passway and thoroughfare with appellants ’ knowledge and respondent was upon the track and appellants’ servants saw or in the exercise of ordinary care should
It is contended that the Missouri corporation is, as a matter of law, not liable for damages resulting from negligence of its lessee, was therefore not properly a party to the suit, and, consequently, its being joined did not affect the Alton’s right to remove the cause; and, therefore,- the petition for removal should have been sustained and further proceedings of the circuit court were without jurisdiction.
Assuming that the Act of 1859 was unamendable without the company’s assent, and that the Act of 1868, amending the former, was likewise, yet neither conferred upon the company any right to lease its road, that right being conferred for the first time by the Act of January 19, 1870. Prior to this enactment the Constitution of 1865 had been adopted and was in force, section 4, article 8 thereof expressly providing that “Corporations may be formed under general laws, but shall not be created by special acts, except for municipal purposes. All general laws and special acts passed pursuant to this section may be altered, amended, or repealed.”
The policy of this section is clear enough; and while it may be conceded contract rights cannot lawfully be impaired even' by the adoption of constitutional provisions affecting them, yet it is true that the right to lease its road could not have been a part of the company’s charter contract in any sense until 1870 (Dean v. Railroad, 199 Mo. l. c. 390; Thomas v. Railroad, 101 U. S. l. c. 84), and since this right to lease was a new, an additional and markedly different power, conferred by the Legislature in 1870, it was subject to any applicable constitutional provisions, which provisions would, of course, remain applicable despite any
The provision in the Act of 1870 (or in former acts which it amended or consolidated) excepting the company from the section of the general law reserving to the Legislature the power-to alter and amend the charter, can in no way impair the force of the constitutional section quoted. We think that section, announcing the general policy of the State, is applicable to that part of the Act of January, 1870, which conferred a new power, the right to lease, upon the company, and that it, by its own force, reserved to the State- the right -to alter and amend the new provisions of the former charter, added after the adoption of the Constitution of 1865 and forming no part of the charter of the company until 1870. Being no part of the original charter contract and being a power accepted after the adoption of the Constitution of 1865, the power to amend the Act of 1870 which conferred the new power was reserved by the constitutional section quoted, and that act was amended by the act of March 24, 1870 (sec. 3078, B. S. 1909), and that is the act now applicable and under it the company is clearly liable for damages resulting from the negligence of its lessee. The Missouri company was properly joined, the application to remove to the Federal court was properly denied and the trial court had jurisdiction.-
In this petition both specific negligence and general mismanagement of the train are pleaded, and evidence directed to the issues raised by the plea of mismanagement was not rendered inadmissible, because, in addition to such plea, there were allegations of specific negligence independently made.
Tbe judgment is reversed and tbe cause remanded.
Tbe foregoing opinion of Blair, 0., is adopted as tbe opinion of tbe court.