| Mo. | Apr 15, 1885
Lead Opinion
The defendant owns and operates a railroad whose eastern terminus is the town of Pacific, about thirty miles west of St. Louis, and its trains are hauled back and forth between Pacific and St. Louis by the Missouri Pacific Railway Company over its road, under a contract between the companies, in substance as follows: First. The Missouri Pacific Railway Company, party of the first part, agrees to furnish for defendant for five years, commencing January 1,1879, “depot facilities for the handling of defendant’s freight, and office room for its agents and clerks.” “Second. The said party of the first part agrees * * * to transport all of the passenger trains of defendant passing to and from St. Louis, to and from the point of junction of the roads of the parties of the first and second part, at Franklin or Pacific, and the Union depot at St. Louis.” “The party of the first part to furnish at its own expense the locomotive and crew of same,” and defendant to “furnish at its own expense all train men for the care and management of said trains.” Defendant’s “trains, and the control and acts of said train men” are “ subject to the rules and regulations” of the Missouri Pacific; that defendant should “clean and care for the inside of its trains,” and, also, defendant to pay “all expenses made and incurred on account of the use and occupation by its trains of the property and facilities of the Union Depot Company at St. Louis.” Third. The Missouri Pacific to “transport all of the freight trains and freight cars” of defendant “passing between St. Louis and Pacific at its own expense.” Fourth. Missouri Pacific to transport all “ passenger cars and trains ” of defendant “with all reasonable promptness and dispatch; ” the defendant to “furnish free of mileage or other expense all the passenger or freight cars for the performance of its business between” St. Louis and Pacific. Fifth. The defendant agrees to indemnify the Missouri Pacific “against allloss or liability ” on account of “ any accident or damage ” received on the
On the twenty-fifth of June, 1879, George E. Smith, husband of plaintiff, took passage at St. Louis on a train of cars owned by defendant, except the locomotive, which belonged to the Missouri Pacific, to go to Webster, a station on the Missouri Pacific Railroad between St. Louis and Pacific, under a commuter’s ticket purchased by him ©f the Missouri Pacific Railroad Company. The train arrived at Webster about ten o’clock at night and stopped at the depot for passengers to get on and off. It was a dark night and the depot was not lighted, and in the act of getting off, or immediately after getting off, Smith fell between two of the cars, and at that moment the train started, and passing over him inflicted injuries of which he died soon after, and his widow instituted this suit against the defendant to recover damages. The negligence alleged is that the train did not stop long enough to allow the deceased a reasonable time to alight, and that the depot was not lighted.
The principal and controlling question in the case is,, whether, under the agreement between the companies, the train in question passing over the Missouri Pacific road between Pacific and St. Louis is to be regarded as defendant’s train in a sense that makes it liable for injuries occasioned to the deceased by the negligence of the
The case, therefore, turns upon the construction of the contract between the two companies. Parol evidence was properly admitted to show the meaning of the phrases “train men” and “crew,” as employed in the contract, .and to show what are the duties of conductors and other train men; and aside from the parol testimony of those ■employes that they were in the employment of the Missouri Pacific Company, the admissibility of which is ■questionable since that is a question to be determined by the written contract, in our opinion, by the terms of the ■contract the train men were in the employment and under the. control of the Missouri Pacific Company while the
The fifth clause of the contract, by which defendant .agreed to indemnify the Missouri Pacific Company “against all loss or liability” on account of “any accident or damage” received on the road “through the fault or negligence of the defendant or its agents or employes,” giving it its broadest scope, does not alter the relation of the two companies to passengers from St. Louis to any station between that and Pacific. If it be so construed that if the plaintiff in this case had sued the Missouri Pacific Company and recovered a judgment, the defendant would be liable to the Missouri Pacific, it is but a contract of indemnity, which, of itself, cannot •create a liability on the part of defendant to such a passenger. That by the agreement, the Missouri Pacific 'Company was to pay no part of the wages of the train men who were to be furnished by defendant, does not •create a liability on the part of the defendant to a passenger from St. Louis to a station between that and Pacific, •any more than an agreement between the Missouri Pacific Company and an individual, by which the latter should assume the'payment of the train men on one of its trains, the company, as in this contract, reserving to itself the ■control of the train and train men, and the movements of
Counsel for appellant cite Kelly v. The Mayor, etc., 11 N.Y. 432" court="NY" date_filed="1854-09-05" href="https://app.midpage.ai/document/kelly-v--the-mayor-c-of-new-york-3581236?utm_source=webapp" opinion_id="3581236">11 N. Y. 432, and Durst v. Burton, 47 N.Y. 167" court="NY" date_filed="1872-01-16" href="https://app.midpage.ai/document/durst-v--burton-3577353?utm_source=webapp" opinion_id="3577353">47 N. Y. 167, in support of the proposition that the train men were acting under the supervision of the Missouri Pacific Company; that fact would not make them agents of that company. Kelly v. The Mayor is an authority againt the plaintiff’s claim here. There the city of New York had ordered a street to be graded, and contracted with an individual to do the work, and it was held that the city was not liable for damages caused by negligence of workmen employed by the contractor, notwithstanding by the terms-of the contract the work was to be done under the direction and to the satisfaction of certain officers of the city. There the city employed another to do its work, reserving the right to have the work done under its direction and to its satisfaction. Here the Missouri Pacific was doing its own work with absolute control of the agencies employed, responsible to no superior for the manner of doing it, and that it hired those agencies from, or that they were gratuitously furnished by another, cannot alter its relation to passengers or the public, or establish a relation between the passengers or the public, and the corporation or individual furnishing such agencies.
In Durst v. Burton, defendants represented an association owning a cheese factory, which they leased to one who contracted to manufacture cheese for them at an agreed price per pound, defendants reserving no right of supervision, but carrying on the business by furnishing the materials and taking and selling the product in the market as an article manufactured by them. And they were held liable for the fraud of their lessee in the manufacture ©í a lot of cheese sold by them. The difference between that and the case under consideration is too palpable to require more than a statement of the foregoing facts. The defendants there held themselves out
One ground of negligence averred in the petition is the failure to light the depot at Webster, a matter in which defendant had no authority whatever, and we mention it only to show where the doctrine contended for by appellant would lead, for there is no question if what appellant claims to be the law be conceded that the defendant would be liable, if the only negligence alleged and proved as causing the injury to the deceased was the failure to llave a light at the depot for the benefit of persons getting on or off the train. The court of appeals held that the circuit court erred in refusing an instruction asked by defendant, virtually withdrawing the case from the jury, and we are all agreed that the judgment of the court of appeals should be affirmed, except Sherwood, J., absent.
Rehearing
On Re-hearing.
We adhere to the opinion heretofore delivered in this cause. It is pertinently asked if two persons sitting on the same seat in a car are injured in a ' railroad accident, can it be that one must look to one company and his companion to a different company for redress? Why not? In the case at bar the defendant company did not undertake to carry passengers from St. Louis or Pacific to points between those stations. It received no part of the money paid to the Missouri Pacific Railway Company by such passengers. The train was not under its control or management, but under that of the Missouri Pacific. If the general manager of the
There were no contractual relations between him and the defendant. The conductor would have subjected the Missouri Pacific to a suit for damages had he ejected the passenger from the train, and would himself have been liable to that company for any damages recovered by the passenger against the Missouri Pacific for such ejection. Could he have sued the St. Louis & San Francisco Company for such ejection? That company had not undertaken to carry him. It was not doing any such business between St. Louis and Pacific, and clearly he would have had no cause of action against the defendant, but must have sought redress from the Missouri Pacific. Whether to a through passenger who had procured a passage from the defendant company, the latter would have been liable for any injury sustained between St. Louis and Pacific in consequence of the negligence of those operating the
On a critical examination of the cases relied upon to sustain this action it will be found, in such of them as are correctly decided, that there is so marked a distinction between them and this as makes them wholly inapplicable. In every one of them it will be found that the party held liable had some control over the negligent servants in the very work they were engaged in performing.
The judgment is affirmed.
Dissenting Opinion
Dissenting-.—For all the purposes of this •case the negligence of the train men in the respect alleged in the petition is conceded, so that the only question to be considered is whether under the written contract between the two companies the defendant’s train in question in passing from St. Louis to Pacific is to be regarded as defendant’s train in a sense that makes it liable for the negligence of the train men. That it is liable, and liable, too, under the terms of the contract, I have no doubt.
If the defendant’s train was operated by its servants, it is a circumstance of no moment that the ticket was sold by the Missouri Pacific Company, for upon that ticket the plaintiff’s husband was received as a passenger, and as to him the defendant was a common carrier and liable for the negligence of its servants the same as if it had sold the ticket itself. Todd v. Ry. Co., 3 Allen, 18; Faulkers v. Ry. Co., 42 L. J. (n. s.) 345. Nor did it make any difference that the defendant was not the owner of the track upon and over which its cars were operated.
The defendant owned and operated a long line of road which terminated at Pacific, some thirty-seven miles-from St. Louis, and for the mutual benefit of itself and the Missouri Pacific Company, made the contract in question, whereby the latter undertook to transport defendant’s passenger trains and freight ears back and forth between these points over the road of the Missouri Pacific Company for a stipulated percentage of the gross earnings received by the defendant from all of its passenger and freight business passing over the road of the Missouri Pacific Company, as aforesaid. It is true the manner of running the passenger trains and the control and acts of the train men while on this part of the road are to be subject to the rules and regulations ©f the Missouri Pacific Company, and that company is to furnish the locomotives and crews for the same at its own expense, but it-is clearly provided that the defendant was to furnish, at its own expense, all train men for the care and management of -its trains, and is required to care for the inside-of its cars at St. Louis, and to pay all expenses for the-use of the Union D«pot at St. Louis. These train men, including the conductor, are employed by the defendant, and receive their compensation from the defendant alone. They are the servants regularly in charge of the train throughout its trip. While the Missouri Pacific Company may, and does, make the time-table and general rules, these trains are under the immediate control of the defendant’s servants.
The evidence in this case shows that the conductor
It is said, and there is evidence to that effect, that the defendant objected to carrying these passengers from St. Louis to Pacific and intermediate points, but we do not see what the plaintiff ’ s husband had to do with these controversies; the broad fact remains that defendant did receive these passengers into its cars and discharge them at their destination, and that, too, on these tickets of the ■Missouri Pacific Company. The defendant, by its conduct, held itself out to receive such persons as passengers, certainly it did do so, and they were entitled to all the protection due to passengers. That the defendant would be liable to those passengers to whom it sold tickets from St. Louis to points beyond Pacific on its line, for negligence of these train men, cannot, we think, be fairly questioned; yet, to a passenger in the same coach who holds a ticket to Pacific, or some intermediate point, it is contended the defendant owes no duty. That this train was under the immediate control of the defendant’s agents, and that they, and they alone, had the right to regulate the conduct of the passengers, and were called upon to look after and care for them as the agents and servants of the defendant, is clear enough from the terms of the contract. For these reasons I dissent from the