Dillon v. Lindell Railway Co.

Bland, P. J. contract of car evilence^res' adjndicata. [634] princifal and dlmun-ir ence' [633] This case is here on a- second appeal. For a statement of the principal facts in the case reference is here made to the opinion on the first appeal reported in 64 Mo. App. 418. It was adjudged on the former appeal that the contract of carriage was for one way only and not for a round trip. On the retrial of the case the plaintiff (respondent here) introduced new and additional testim0ny as to the contract' for the purpose of overcoming the construction of the contract as adjudged by this court. The trial court evidently did not regard this additional testimony as sufficient for that purpose, as no, instruction was given to the jury submitting this question to them. In this we think [634] the trial court was correct, as the additional testimony did not materially change the facts as to the contract. This issue was therefore res adjudicata. Fink v. Ins. Co., 66 Mo. App. 514, and cases cited. On the retrial the cause was submitted to the-jury upon the theory that Eoulk, as the agent of appellant, had authority to direct passengers what car to take to reach a given point on the appellant’s-roads and to control the conductors of the cars in this regard, and that in the exercise of this authority he directed -Mrs. Dillon to take the car which she did take, assuring her that it would take her to Page avenue and King’s Highway. The conductor of this ear told her that his trip was down town and that he would not go out to King’s Highway. Notwithstanding this information, Mrs. Dillon with her pupils boarded.the car as directed by Eoulk and were carried down town to Third street on Washington avenue, from which point they were compelled to take a car upon another street railway and to pay fare in order to reach their homes. It was not shown that Eoulk had prior to this date been in the habit of instructing the traveling public as to the running of the appellant’s cars, nor was it shown that he had any express authority to do so. On the contrary it was abundantly shown by the evidence that Eoulk’s sole duties and authority were to take the register of the cars as they came in and to signal the conductors when to start out and to send and receive telephone messages at the telephone station in the pavilion. It is unquestionably the duty of the appellant as a common carrier of passengers for hire to provide agents and servants for the purpose of giving information to the traveling public as to the running and destination of its cars. It is a matter of common knowledge that street railway companies discharge this duty by having upon every car [635] or train of cars run by them, a conductor whose duty it is to give this information. The appellant had a conductor in charge of the ear upon which Mrs. Dillon took passage, who informed her that his car would go down town and not to her destination. As the conductor of this car he was authorized to speak for the company, and she should have heeded his information. By following the directions of Foulk she took upon herself the risk of his authority to direct the destination of this car. There was a failure of proof, either that such authority had been expressly delegated to him by the appellant or of a course of dealing with the traveling public from which such authority might be reasonably inferred. The demurrer to the evidence as prayed by appellant should have been given. Judgment reversed. Judge Bond concurs, Judge Biggs dissents.