Chaney v. Louisiana & Missouri River Railroad

VALLIANT, J. Plaintiff sues to recover damages for personal injuries sustained by him in an accident on a railroad owned by the defendant corporation — 602 — but leased to and operated by the Chicago & Alton Railroad Company. The accident is alleged to have resulted from a defective condition of the road and the negligent running of the train. The petition is in two counts. In the first count plaintiff declares that he was an employee of the Chicago & Alton Company, engaged in operating the train, and in the second count that he was a passenger. The plaintiff’s evidence tended to show as follows: The defendant is a Missouri corporation owning a railroad extending from Louisiana, Missouri, south to the Missouri river, which road is leased to and operated by the Chicago & Alton Railroad Company. Plaintiff lived near Auxvasse, which is a station on this road a few miles from Mexico, Missouri. A local train composed of freight cars and a caboose in which passengers were usually carried ran regularly on that part of the road. The plaintiff was familiar with this train, was well acquainted with the conductor and brakemen, made frequent trips on it from Auxvasse to Mexico and return.- He was not in the habit of paying fare and did hot expect to do so. The conductor never asked him for fare, but frequently would ask him to assist in handling the baggage and unloading cars and he always assisted in whatever he was asked to do. He frequently rode on the top of the cars and helped with the brakes when requested. He had been going to and fro on this train, on these conditions, once a week for several years. On the day of the accident the plaintiff boarded the train at Auxvasse, aiming to go to'Mexico; he got on the front platform of the caboose; the conductor at that time was on the rear platform, giving the signal to the engineer to start; plaintiff at that time was in the line of the conductor’s vision, whether he was seen by the conductor or not he did not know. When the train pulled out from Auxvasse the plaintiff,. standing on the front platform, looked into the caboose and saw that all the seats were occupied,' four or — 603 — five men were standing in the aisles, and thereupon he climbed up on top of the freight car next in front and walked on along to the front over about six cars and sat down on the top of a freight car. The two brakemen saw him. When the train stopped at the next station he got down on the ground. While the train was standing there one of the brakemen asked him to go up and let off a brake; he went up on top of the car for this purpose, it was the third or fourth car from the caboose; he let off the brake as requested, and then sat down on top of the car at one end facing to the rear, with his legs hanging down between two cars, holding to a brake. He was in that position when three of the ears in front-jumped the track. The rails spread, the wheels of the car he was on dropped between the rails, the rear cars crushed against it and his leg was crushed.. The result was his leg was afterwards amputated. The road was in bad condition and the train was being run unusually fast. Upon the conclusion of the plaintiff’s testimony, the court, at the request of the defendant, gave an instruction to the effect that the plaintiff was not entitled to recover, which resulted in a judgment of nonsuit, from which the plaintiff appeals. The plaintiff, as shown by his petition, was not entirely satisfied in his own mind whether he was on the train in the capacity of an employee to assist in its operation, or that of a passenger to be taken care of by those in charge of the train; in his brief before us he inclines to the position that he was a passenger, but insists that whether employee or passenger he was entitled to have his case submitted to the jury. We think it is very clear he was not an employee, but it does not follow from that conclusion that he was a passenger. If he was on the train with the knowledge and consent of the conductor, for the purpose of being carried, he was a passenger. The only evidence from which it could be inferred that the conductor knew he — 604 — Tías on the train at all is to the effect that he Tías in the line of the conductor’s vision when the latter was giving the signal to the engineer to start. But at that time the plaintiff was on the front platform of the caboose; there is no evidence that the conductor saw him on the top of the freight car. It is perhaps unnecessary, however, for us to decide that question, because, if we concede to the plaintiff that his relation to the defendant .was that of a passenger on the train, we can not concede that he was justified as a passenger in talcing his seat on top of the freight car, and we can not adjudge the carrier liable for an injur3r received by the plaintiff to the producing of which his position, so unnecessary and so unusual for a passenger, contributed. The plaintiff in giving his testimony was unable to divest himself entirely of either of the two characters in which he sued. Plaving in mind that perhaps his relation was that of an employee, he conveys the idea that he was on top of the car to assist with the brakes; but if he is to be adjudged a passenger he says he climbed on top of the car and took his seat there because all the seats in the caboose were occupied, four or five persons already standing in the aisles. If we should sustain the plaintiff’s suit on that theory, then we. would be laying down the law that whenever a passenger train is so crowded that one can not obtain a seat inside he may climb on top of the train, and if then through the negligent handling of the train there comes a jar sufficient to throw him off his elevated seat, and he is injured, the carrier is liable, notwithstanding the fact that his position on top of the train had as much to do with the injury as the jar. Of course the bare statement of the proposition is its refutation. But the plaintiff relies on section 1080, Revised Statutes 1899, which says that, “In case any passenger on any railroad shall be injured while on the platform of a car, or in any baggage, wood or freight car, in vio — 605 — lation of the printed regulations of the company, posted up at the time in a conspicuous place inside of its passenger cars then in the train, such company shall not be liable for the injury: Provided said company, at the time, furnished room inside its passenger cars sufficient for the proper accommodation of its passengers. ’ ’ There were no such printed regulations posted in the caboose. ; That is a quaint old statute. It was enacted in 1853 (Laws 1853, p. 143), passed into the revisión of 1855, and seems to have escaped the pruning knife of all the revising sessions of the General Assembly since that date. The art of operating railroads has improved since that statute was enacted and the people of this State now know more about railroad traveling than they did fifty years ago. That act seems to assume that it was expected that passengers, when the car or cars especially designed for them happened to be crowded, would find seats in the baggage car, or in a freight ear or in a “wood car,” whatever that may have been, and it devolved the duty on the railroad company to post conspicuous notices on the passenger cars warning the people not to do so. But we need not say in this opinion what the effect of that statute would be at this day on a case brought within its terms, for the reason that the plaintiff’s case does not come within those terms. The statute assumes that when the passenger car is crowded men may take refuge in a baggage car, in a freight car, or in a wood car, but it makes no provision for a man who is so reckless as to take a position on the top of a freight car as this passenger did. The plaintiff was the only person hurt in the accident and it is certain the perilous position which he voluntarily and unnecessarily assumed contributed to 'the result. — 606 — Although there was no plea of contributory negligence, yet where it clearly appears, as it does in this case, from the plaintiff’s own evidence, that he was guilty of negligence that directly contributed to produce the injury, it is the duty of.the court to take the case from the jury by an instruction in the nature of a demurrer to the evidence. [Hudson v. Railroad, 101 Mo. 13; Buesching v. Gas L. Co., 73 Mo. 219.] We are tempted to follow the learned counsel in theit able discussion of the question of the liability of a lessor company when the. injury, as in this case, is alleged to have resulted from the negligent management of its train by a lessee company, but the facts of this case showing no right of-recovery in plaintiff against the defendant, even if the defendant itself had been operating the train, it is not only unnecessary but would be improper for us to decide what would be the defendant’s attitude if the case was different. The judgment is affirmed. All concur.