197 Mo. 110 | Mo. | 1906
Plaintiff recovered a judgment for $2,500 as damages for injuries sustained by him in a train wreck on defendant’s road. The trains in the wreck belonged to the Chicago & Alton Railway Com
I. We have, in the case of Markey v. Railroad, 185 Mo. 348, said all that we deem necessary to say on that question, but since, as we understand, that case is now pending before the Supreme Court of the United States on a writ of error, we will not now say that for. the purpose of giving this court jurisdiction the constiutionality of that clause of that statute can no longer be drawn in question. We will therefore entertain jurisdiction of this appeal.
II. The case stated in the petition is substantially this:
The railroad belongs to the defendant, it is leased and operated by the Chicago & Alton Railway Company. On June 6, 1902, the plaintiff was at Odessa, a station on the railroad, aiming to go to Kansas City; a C. & A. freight train being there, the plaintiff asked a brakeman on the train the privilege of riding on it to Kansas City; the brakeman consented on condition that plaintiff would help unload freight along the route, to which terms plaintiff agreed. “Said arrangement was immediately called to the attention of the conductor of said train and he acting within the scope of his employment expressly assented to it and permitted the plaintiff to ride upon said train until same was wrecked as hereinafter stated.” The train on which the plaintiff entered under this agreement passed on to
The answer was a general denial, and a plea that plaintiff was a trespasser on the train, concealed from view of the trainmen; that defendant was not liable for the acts of the Chicago & Alton Railway Company, and that plaintiff for a valuable consideration had executed a release of all claim for damages growing out of the accident. The reply put the new matter in the answer in issue.
The testimony on the part of the plaintiff tended to prove as follows:
The plaintiff, with a companion named Doyle, started from Springfield, Illinois, to go to Kansas City.
On the part of the defendant the testimony tended to show that neither the conductor nor any one of the train crew knew that these men were on the train. At Odessa a party of young men, 15 or 20, took passage on the train for Oak Grove where there was to he a ball game played, the train was late and these young men in order to make time volunteered to assist in handling the freight at the stations and did so. It was not unusual along the line of that road for draymen who came to the stations and wanted to get the hauling to also assist the trainmen in handling freight, and the conductor testified that whilst he saw some men helping in that way he thought they were either these young men going to the ball game or draymen; he did not know that anyone was on the train with the understanding that he was to help handle freight in consideration of being carried; that he never saw either the plaintiff or Doyle until he saw them in the hospital the next day. The conductor also testified that whilst he had a time card showing that this passenger train was due there at that time and if he had thought of it he would have known it, yet the fact was he had for the moment forgotten it.
There was a good deal of testimony on both sides relating to the extent of the plaintiff’s injuries, his treatment and the alleged release, but the foregoing is substantially the tendency of the evidence on both sides relating to the question of the plaintiff ’s right to recover at all.
At the close of the plaintiff’s evidence the defendant asked an instruction in the nature of a demurrer to the evidence which was refused and exception taken.
Did the plaintiff by his pleading and proof make out a prima facie ease?
The plaintiff in his brief contends that he was a passenger. If he is correct in that contention then he
And the contract must be one between the individual on the one side and the carrier on the other; if the carrier is to be bound by the contract it must be a contract which he has made, When the carrier is a corporation it can contract only through its agent, but that does not alter the case; if it is to bind the corporation it must be the contract of the corporation, not that of the agent. Men dealing with- corporations of a public character like that of a railroad company are presumed to know the ordinary scope of the duties of a servant of the company with whom the public is brought into daily contact; they know the ordinary scope of the duties of a brakeman, a locomotive engineer and a conductor. No man of ordinary common sense needs to be told that neither a locomotive engineer nor a brakeman has authority to make a contract in behalf of the corporation for the carrying of passengers or to receive the price of carriage; no man offers to make such a contract with either such servant with an honest purpose.
Men of ordinary common sense and common experience know the difference between a freight train and a passenger train and the purpose of each, and they know the difference between a caboose in a freight train and a freight car. Therefore, when a man comes into court claiming to have been a passenger and to have been in
The plaintiff in this case realized in the beginning that to establish his claim to the character of passenger he must show that he was on the train by virtue of a contract, and therefore in his petition he said that before entering upon the train he made a contract with the brakeman whereby in consideration that he would help the brakeman handle freight the brakeman would allow him to ride on the train. The law charges the plaintiff with common sense and common knowledge in such matters, and therefore charges him with knowledge that the brakeman had no authority to make such a contract.
There is no difference in a legal point of view between the contracts this plaintiff made with the two other brakemen severally, whereby he paid fifty cents to one to allow him and his companion to ride from Jacksonville to Roodhouse, and to the other seventy-five cents between Roodhouse and Odessa; it was a corrupt bribe in each case, the money paid to the two other brakemen was for their use, not for the railroad company, and the agreement to assist in handling the freight which the railroad company had employed this brakeman to do was a benefit, if benefit at all, to the brakeman, and in no sense an advantage to the corporation. Not only, therefore, was the alleged contract not within the scope of a brakeman’s duties, but it was an agreement for a consideration personal to himself to induce him to violate his duty. Can one who knowingly makes a contract with a servant to violate his duty to his master be heard to say that that contract is binding on the master, or that out of that contract
In popular estimation the giving of a small sum to a brakeman on a freight train to induce him to allow one to ride on the train in violation of the rights of the railroad company seems to be generally considered a trivial affair and we are not now intending to magnify it, we are not discussing it from a moral standpoint, but when a plaintiff comes into court pleading such a contract and basing his right to recover upon it, the contract must be classed under its proper head and called by its right name. It is a fraud. Here the plaintiff has come into court actually pleading his fraudulent contract and asking that by virtue of it he be adjudged, if not a passenger, at least a meritorious licensee for whose protection the railroad company was under a contractual obligation.
The petition says that this contract which the plaintiff made with the brakeman was immediately called to the attention of the conductor and he ‘ ‘ acting within the scope of his employment expressly assented to it. ” There was no proof of that allegation. There was proof on the part of the plaintiff tending to show that the conductor saw him handling freight at one of the stations, and saw him and his companion on top of a freight car, from which the inference might be drawn that the conductor knew that the plaintiff was on the train; that is the extent of the legitimate inference to be drawn from that evidence. There is nothing in the mere fact of seeing the man handling freight to justify the jury in drawing the inference that the conductor knew that he had made a contract with the brake
This plaintiff is not here claiming that he was on the train by invitation express or implied of the conductor; he is claiming that he was there by right, by virtue of that contract.
We have been referred to cases where it has been held that a person who goes upon a train at the invitation of the conductor with the understanding that no fare is to be paid, or who enters the train without intending to pay and is permitted by the conductor to remain and' be carried, is nevertheless a passenger and entitled ,to the watchful care that is due a passenger.
In the case at bar the conduct of the plaintiff indicated that he did not consider himself a passenger, he did not go into the caboose which was the only vehicle on the train provided for passengers and the only place on the train where the conductor would be sure to see him. His conduct was that of a man avoiding being seen by the conductor and if he was seen it was by accident. The law will not imply a tacit agreement to constitute the plaintiff a passenger in the-absence of any circumstances indicating either that he considered himself a passenger or that the conductor so considered him; it will not imply such a tacit agreement from the mere fact that the conductor saw him on the top of a freight car in the train where no passenger had a right to be and when there was a caboose on the train provided for passengers.
But the plaintiff contends that if he was not a passenger he was a licensee and therefore if not entitled to the high degree of care that belongs to a passenger he was entitled to the ordinary care which is the due of one who is on the train by leave though not by right.
If a visitor approaches your house in the usual way and is admitted by your servant, he cannot be said to be a trespasser, even though you had previously ordered your servant to admit no one. But if knowing your order, the intruder should bribe your servant and by that means gain admission, in what respect is he better than a mere trespasser? If the plaintiff knowing that he has no right to ride on a train without paying fare (and everybody knows that) gives a brakeman fifty cents to allow him to ride and by that means is received on the train and carried, does that transaction raise an obligation on the part of the corporation to treat the plaintiff with more care and consideration than it would be required to treat'him if he had merely intruded on the train stealthily and without leave? We have no fault to find with those decisions that hold that the conductor of a train en- route is as to the government of that train the corporation, and that when he invites or knowingly permits one to ride free on his train, that person, in the absence of fraud on his part, is entitled to be treated as a passenger. But in such case, since the act of the conductor is out of the usual course, his invitation or permission will not be implied from equivocal circumstances and never in aid of a fraudulent scheme to avoid payment of fare.
Our conclusion is that the plaintiff on this train was a mere trespasser and the railroad company owed him no duty except not to injure him if by the exercise of ordinary care after his peril was discovered the injury could be avoided. The evidence shows that the conductor, unmindful for the time being that a passenger train was due then and there, negligently stopped his train on the main track, and was preparing
It was negligence in the conductor to forget that a passenger train was due then and there, and for a passenger injured the company would be liable, hut there is nothing in the evidence to justify the inference that the conductor knew that this train was coming, the most that can he said against him is that he ought to have known it. Whilst it appears from the evidence that he did not send hack a flagman or cause torpedoes to be put on the track, it does not appear that between the time he stopped and the time the passenger train came there was time enough to have done so. Assuming that the conductor knew that the plaintiff was on the train he did not know the peril in which the plaintiff was until he saw the passenger train coming and then there was nothing he could do to avoid the collision.
Our conclusion is that the instruction in the nature of a demurrer to the evidence should have been given. The judgment is reversed.