201 Mo. App. 510 | Kan. Ct. App. | 1919
— This is an action against a carrier of passengers for damages arising from an assault upon plaintiff by a drunken, boisterous and quarrelsome fellow passenger. The charge is that defendant’s servants in control of and operating the ear negligently failed to protect plaintiff.
The answer was a general denial.
At the close of plaintiff’s testimony the defendant demurred but was overruled. At the' close of all the evidence the defendant again demurred but was again overruled. The jury returned a verdict of $1250 for plaintiff. Afterwards, the trial court sustained defendant’s motion for new trial “for the reason that there was a failure to prove the allegations of the petition in that plaintiff was riding on a ticket and that defendant was operating the car and that there was fatal variance between the pleadings and the proof.” From the order sustaining the motion for new trial the plaintiff has appealed. *
The petition charged that defendant operated an electric interurban railway from Leavenworth, Kansas, southeasterly through the State of Kansas, Kansas City, Kansas, and into Kansas City, Missouri; that on the evening of February 12, 1917, plaintiff boarded a car operated by defendant at Third and Elm streets in Leavenworth, Kansas, to be transported to Kansas City, Missouri; that he “was riding upon a ticket bought and purchased from defendant;” that “while he was thus traveling for hire on' defendant’s said car, and when said car, enroute for Kansas City, Missouri, had reached a point somewhere within or near the city limits of Kansas City, Kansas, plaintiff was assaulted by a drunken fellow passenger” etc.
The evidence discloses that Chelsea is a station near the western city limits of Kansas City, Kansas, and the defendant’s interurban line lies between that point and Leavenworth, Kansas, Chelsea being the eastern terminus of said line. The cars, however, run from Tenth and Main streets in Kansas City, Missouri, to Leavenworth and return, that part of the round trip which
According to plaintiff’s own testimony he boarded the car in Kansas City, Missouri, paid the cash city fare of five cents and rode to Chelsea where he got off and bought of the defendant a round trip ticket which was good for transportation from Chelsea to Leavenworth, Kansas, and from there back to Chelsea. He had made the trip many times before and had always paid his city fare from Kansas City, Missouri, to Chelsea, and there purchased his ticket for the transportation between Chelsea and Leavenworth. He went to Leavenworth and, after transacting his business there, boarded one of defendant’s cars to return, using the return portion of his ticket for the transportation to Chelsea; and for the transportation from there to Kansas City, Missouri, he paid the cash city fare of five cents. It is conceded that the assault occurred after the car had reached Chelsea and was on the tracks of' the Kansas City Railways Company on its way from Chelsea to Tenth and Main streets in Kansas City, Missouri, and long' after plaintiff had paid the five cents city fare.
The plaintiff says the defendant joined in submitting to the jury the question óf whether it operated' the car between Chelsea and Kansas City, Missouri, and that there was evidence to sustain the finding that defendant operated the car. But defendant did not submit that issue until after it was compelled to do so by the court’s ruling on the two demurrers defendant interposed. Hence it is not barred or estopped from still asserting that under the conceded facts the transportation between Chelsea and Tenth and Main in Kansas City, Missouri, was the work of .the Kansas City Railways Company, and the men in charge of the car, at such time, while in the general service of the defendant, were, during that 'transportation, in the service of the Kansas City Railways Company.
The car was owned by defendant, and it made a continuous journey from its starting place in Kansas City, Missouri to Leavenworth, Kansas, and on its return trip made a continuous journey, with plaintiff riding-in it as a passenger, from Leavenworth, Kansas, to Tenth and Main streets in Kansas City, Missouri. The car and the caps of the trainmen had the name of the .defendant on them. Defendant advertised an hourly schedule between Leavenworth and Kansas City, Missouri. The cash city fare of five cents which enabled plaintiff to ride from Chelsea to Kansas City, Missouri, was divided by the Kansas City Railways Company, it retaining eighty-five per cent thereof and paying to defendant the other fifteen per cent. The
The evidence relied upon to show that the defendant was not operating the car between Chelsea and Kansas City, Missouri, and that the men in charge of the car, while in the general service of the defendant, were, for this transportation, the servants of the Kansas City Railways Company, is as follows:
The last named Company has, as stated, the franchise to operate the street car system of the two cities of Kansas City, Kansas, and Kansas City, Missouri. By Ordinance, in effect at the time of the assault in question, it was provided that no interurban car should be operated within the city limits over the tracks of the Kansas City Railways Company, except subject to and in accordance with the provisions of said ordinance. By said ordinance the Kansas City Railways Company was required, at the places where the line of an inter
For the purpose of a practical operating agreement, carrying out the above provisions of said ordinance, the Kansas City Railways Company and the defendant, on August 1, 1916, entered into a written agreement, aproved by the city authorities, whereby the Kansas City Railways Company (for brevity called the Street Railway) employed the crews of the interurban upon such cars at the point of connection as its own crews who should, under the provisions of said ordinance and agreement, operate such cars in the employ of the street Railway. The defendant, Interurban, agreed that it would employ no men who would thus operate cars over the tracks of the Street Railway without the approval of the latter, and would continue in its employment no such men who were objected to for any reason by the Street Railway, and if for any reason the interurban
Under this ordinance and' agreement, the crew of the interurban car in question became the crew of the Kansas City Railways Company and were its servants for the particular work of operating and controlling the car after it left defendant’s line and entered upon the city transportation. And the evidence discloses that what was actually done was in strict accordance with the provisions of the said ordinance and written agreement. The wages of said crew, for the time the car was engaged in the transportation for which the city fare was required, were paid by the Kansas City Railways Company. The motorman testified that after he left Chelsea and while operating the car between that point and Kansas City, Missouri, and into said city, he did so as an employee of the Kansas City Railways Company; that when operating the car between Chelsea and Leavenworth he received orders from defendant’s dispatcher located at Walcott, Kansas, but that when the car was being operated between Chelsea an(l Tenth and Main Streets in Kansas City, Missouri, the defendant’s dispatcher did not even know .where the car was and gave no orders for the car till it returned to defendant’s tracks at Chelsea. The oral testimony of defendant’s other witnesses was- to the effect that the motorman and conductor did become the crew of the Kansas City Railways Company as provided in said written contract, and no one testified to the contrary.
If the provisions of the ordinance and contract thereunder are valid and were complied with, then it is difficult to see why the motorman and conductor did
The proposition that one, although in the general service of one master, may nevertheless become the servant of another with reference to the particular work of such other, is upheld by the United States Supreme Court in the case of Standard Oil Company v. Anderson, 212 U. S. 215, 220, 221, 225. In that case the plaintiff was a long-shoresman in the employ of a master stevedore who, under contract with the Standard Oil Co. was engaged in loading a ship with oil. He was injured by the negligence of a winchman and obtained judgment in the lower courts. The question was wheth
‘ ‘ One may be in the general service of another, and, nevertheless, with respect to particular work, may be transferred, with his own consent or acquiescence, to the service of a third person, so that he becomes the servant of that person with all the legal consequences of the new relation. It is insisted by the defendant that the winehman, though in its general employ, had ceased to be its servant, and had become for the time being, with respect to the work negligently performed, the servant of the master stevedore. This may be true, although the winehman was selected, employed, paid and could be discharged by the defendant. If it is true, the defendant is not liable.”
“It sometimes happens that one wishes a certain work to be done for his benefit and neither has persons in his employ who can do it nor is willing to take such persons into his general service. He may then enter into an agreement with another. If that other furnishes him with men to do the work and places them under his exclusive control in the performance of it, those men became pro Tiac vice the servants of him to whom they are furnished. But, on the other hand, one may prefer' to enter into an agreement with
' “In many of the cases the power of substitution or discharge, the payment of wages and other circumstances bearing upon the relation are dwelt upon. They, however, are not the ultimate facts, but only those more or less useful in determining whose is the work and whose is the power of control.”
Applying these principles to the case in hand, it would seem to logically follow from the facts and cir- . cumstances herein that the men were, at the time of the assault, in the service of the Kansas City Railways Company. The work being done was the Work of that company, and work that the defendant could not do, nor did the defendant have any control over the men in charge of the ear while it was in use on the tracksi of the street railway.
This ruling does not conflict with the decision in McAdow v. Kansas City Western. Railway Co., 192 Mo. App. 549. In that case the question was whether the defendant was engaged in interstate commerce, which, of course, depended upon whether the defendant was engaged in transporting the passengers over the streets of, and into, Kansas City, Missouri. It was held that it was so doing. But there the facts shown were
“There was evidence that in fact at the time of the accident the only control exercised by the Missouri Company was to put a conductor upon the car to receive the fares, that while in Missouri it received its orders from the Kansas side, and that the Company was in the hands of receivers who seem not to have recognized the contract.”
Not only does the evidence in this case show that the car was operated in accordance with said ordinance and contract, but the presumption is they were obeyed
For the foregoing- reasons the difference between the pleading and the evidence was much more than a variance which requires the observance of sections 1846 and 1847, Revised Statutes 1909, before advantage can be taken of it; it amounts to a failure of proof, and the court’s action in sustaining defendant’s motion for new trial is affirmed.