Lemon v. Chanslor , 68 Mo. 340 ( 1878 )

Norton, J.

This suit was instituted in the Lafayette circuit court for the recovery of damages for injuries alleged to have been received by plaintiff, in consequence of the unsoundness of a hack used by defendants, as commou carriers, in transporting persons from the depot of the Missouri Pacific Railroad, in the city of Lexington, to different points in said city. The.petition alleges that, plaintiff was received by defendants, as a passenger, and that the hack used by them was unsound, unsafe and unlit for such use, in consequence of which, and the recklessness and gross negligence of defendants in using the same, it suddenly broke down, thereby greatly injuring plaintiff and disabling him permanently. The answer of defendants, after denying the allegations of the petition, sets up by way of defense that they were the owners of a livery stable in Lexington, and kept horses and vehicles for hire, and that they were accustomed to send hacks to said depot for the purpose of conveying passengers therefrom to different points in the city, and avers that defendants were not common carriers of persons, but were livery men and hackney coachmen. The answer further avers that plaintiff' was a conductor on the railroad from Sedalia to Lexington, which came to and departed from said depot the morning and evening of each day; and that plaintiff" was accustomed, as a gratuitous passenger, to enter into the hacks of defendants and to be carried to and from said depot. That plaintiff, on the day the injury was sustained, entered a hack of defendants without paying or expecting to pay fare; that said hack so entered was sound and roadworthy so far as could be seen or known by human foresight, skill and diligence. It is also alleged that said hack was drawn by well trained and gentle horses, which were driven by an experienced and competent driver; that the hack was not overloaded, but, from some cause unknown, and which the utmost skill and diligence could not foresee, the left spindle of the front axle gave way and occasioned the injury of which plaintiff complains.

After a motion to strike out all of said answer setting up new matter was overruled, plaiutiff' filed his replication traversing the same. Upon a trial of the cause, which was had in the circuit court of Saline county, the venue of the cause having been changed, the plaintiff obtained judgment for $1,000, from which the defendants have appealed to this court. Besides the usual errors assigned are the following: First, That the petition does not state facts sufficient to constitute a cause of action. Second, That error was committed by the court in refusing to strike out parts of replication. Third, That the court erred in admitting illegal evidence, and in giving improper and refusing proper instructions.

i. common caegees:°FRackman) petition, need not stona!esal eonclu"

It is claimed, in support of the first objection, that the petition is defective in not'stating that plaintiff paid, or agreed to pay, any sum for his conveyance in defendants’ hack, and because of the lack of this averment, it is argued that no- contract existed between plaintiff and defendants, and •consequently no cause of action. The averments in the petition charge that defendants are common carriers, and that plaintiff was accepted by them as a passenger. In such case the law implies a contract that the passenger shall pay his fare for being carried, and that he shall be safely carried, and an express contract need not be averred. Frink v. Potter, 17 Ill. 406; Thorne v. Cal. Stage Co., 6 Cal. 232; Great Western Ry. Co. v. Braid, 1 Moore P. C. (N. S.) 101. u The obligation of a carrier to carry safely, arises out of a public duty, and not from any contract to do so,” and the promise-to carry safely is implied from the duty, not the duty from the promise. Story on Bail., (9 Ed.) § 590, note 1.

2._. _. PMturTin plead-mg: estoppel.

2. The same objection, and for the same reasons, having been made to the action of the court in receiving evidence, that was made to its action in refusing to strike out parts of replication, we wiq consider it under the third cause assigned for error. Plaintiff offered evidence, which was received, tending to show that the hack in which he was being carried was overloaded. The evidence was objected to on the ground that the petition contained no averment that it was overloaded, and that, therefore, the replication containing such averment was a departure from the cause of action stated in the petition. It will be observed that defendants in their answer, after a specific denial of the averments of the petition as to the unsoundness of the hack, alleged as new matter that it was • drawn by safe horses, was driven by a careful driver, and was not overloaded. Plaintiff filed bis motion to strike out this part of the answer, which the court overruled, making it necessary for him to put these facts in issue if they were not true, by denying them in his replication. ■ If this, as is contended, amounts to a departure in pleading, the defendants, by tendering the issue in their answer, are responsible for it, and ought not now to be heard to complain of a consequence of their own act. Besides this, the hack from the mere fact of' having been overloaded, if such were the fact, may have been rendered unfit for the service to which it was put. Chit. Plead., (16 Ed.) vol. 1, 677, 679.

3 _. _. rece&aw’eln ?£ buttai.

After the defendants had closed their evidence, plaintiff" was permitted to read in rebuttal the depositions of Joseph James, Al. Hunt and A. D. Russell. The evidence was objected to on the ground that wag not -n rebuttal, but should have been offered as evidence in chief. We think the objection was properly overruled. Prima facie, when a passenger receives injury while being carried on a train without fault of his own, there is legal presumption of negligence casting upon the carrier the onus of disproving it. This is the rule when the injury is caused by defect in the road, cars or machinery, or by a want of diligence or care of those employed, or by any other thing which the company can and ought to control as a part of its duty to carry the passenger safely; but this rule of evidence is not conclusive. The carrier may rebut the presumption, and relieve himself from responsibility by showing that the injury arose from an accident which the utmost skill, foresight and diligence could not prevent. Meier v. Penn. R. R. Co., 64 Pa. St. 225; Sherman & Redfield on Neg., § 280; Red on Rail., § 1760 ; Leveriny v. Union Trans. & Ins. Co., 42 Mo. 88; Story on Bail., (9 Ed.) § 601. The evidence contained in the depositions tended, as we think, to rebut that offered by defendants, and was, we think, clearly admissible.

4 _. witness impeacWnt oí.

Nor do we perceive any error in allowing the plaiutiff to be recalled to state that he had never, either directly or indirectly, offered witness, Hunt, any money 01> rew£ird for testifying in the case. After thé attempt made by defendants to impeach said Hunt by proving that he had said if plaintiff recovered in the suit there would be money in it to him, we cannot see how defendants could have been injured by the evidence, even although it might be objectionable. It could not have prejudiced them, for it tended to show that the statement made by Hunt was false, and was, therefore, in aid of the object that defend ants'had in view, viz.: the impeaehment of Hunt. The other, objections made to the introduction of evidence not affecting either the substance or merits of the case will not be considered.

5.-: duties of: onus proban<n-

Five instructions were given at the instance of plaintiff, all of them being excepted to, and of the nine asked for by defendants, all were sriven except the first . “ , . and sixth, which were refused, to which action exception was saved. The instructions given as well as those refused, will appear in the report of the case. The first and second instructions substantially tell the jury that if they believed from the evidence that plaintiff took passage in one of defendants’ hacks and coaches, and that while the same was being driven at a moderate gait, it suddenly broke down by reason of the front axle giving way, whereby plaintiff was injured, that it rested on defendants to show that the hack was sound and roadworthy, and that the accident was caused by a defect that could not have been seen, detected or known by defendants by the exercise of the utmost skill, knowledge and inspection of said hack. It is insisted that the onus of proving negligence was on the plaintiff, and that the instructions are erroneous in shifting the burthen to defendants, and also because they hold defendants liable for slight neglect. The instructions, we think, are in strict harmony with the authorities. In Story on Bail., § 601, in which the liability of passenger carriers is treated of, it is said “ as they undertake for the carriage of human beings whose lives, limbs and health are of great importance to the public as well as themselves, the ordinary principle in criminal cases where persons are made liable for personal wrongs and injuries from slight neglect, would seem to furnish the true analogy and rule. It has been accordingly held that passenger carriers bind themselves to carry safely those whom they take into their coaches as far as human care and foresight can go, that is for the utmost care and diligence of very cautious persons, and of course they are responsible for any, even the slightest neglect.” The same principle is announced in the following authorities: Angell on Carr., § 569; Ingalls v. Bills, 9 Met. 1; Christie v. Griggs 2 Camp. 80; 11 Pick. 106; Taylor v. Grand Trunk Ry. Co., 48 N. H. 304; Stokes v. Saltonstall, 13 Peters 181. In the last case cited the subject is thoroughly and exhaustively discussed. “ When damage or injury happens to the passenger by the breaking down or overturning of the coach, the presumption, prima facie, is that it occurred by the negligence of the coachman, and the onus probandi is on the proprietors of the coach to establish that there has been no negligence whatever, and that the damage or injury has been occasioned by inevitable casualty, or by some cause which human care and foresight could not prevent. Eor the law will, in tenderness to human life and limbs, hold the proprietors liable for the slightest negligence, and will compel them, by satisfactory proofs, to repel every imputation thereof.” Story on Bail., § 601; Higgins v. Hann. & St. Jo. R. R. Co., 36 Mo. 432; Meier v. Penn. R. R. Co., 64 Pa. St. 225; McKinney v. Neil, 1 McLean C. C. R. 540. In McKinney v. Neil, supra, it was held that the upsetting of a stage coach is prima facie evidence of negligence, and a passenger who has been injured need show nothing more to sustain his action, and it will then be incumbent on defendant to show, by way of reducing the damages or in bar of the action, the circumstances of the case. The above authorities fully warrant instructions one and two given for plaintiff, and justified the court in refusing number one asked by defendants.

6. gratuitous passenger

It is insisted that the third instruction in which the jury were, in effect, told that if plaintiff was a gratuitous passenger, such fact constituted no defense, and -kbgy believed that in consideration of plaintiff notifying defendants by telegraph before the arrival of trains at Lexington of the number of persons therein who would require transportation from the depot, defendants allowed plaintiff to ride in their hacks without paying fare, that then plaintiff was not a gratuitous passenger. It is claimed that this instruction should not have been given, because there was no evidence on which to base it, and because it does not assert a correct principle. Mr. Chanslor, one of the defendants, in his evidence states that the conductor would sometimes telegraph for extra hacks ; that he had told his men not to charge the conductor or railroad men. Plaintiff,in his evidence, states that he was in the habit of telegraphing to defendants before the arrival of his train the number of persons who would be likely to require carriage by them. This, we think, was sufficient to authorize the instruction. The principle announced in it, that although plaintiff* might have been a gratuitous passenger, such fact constituted no defenses is supported by all the authorities which have come under our observation. While in some of them intimations are made that in the case of a gratuitous passenger, the carrier may only be liable for gross negligence, it has not been held in any of them that such fact would exempt the carrier from all liability. On the contrary, the weight of authority favors the doctrine of holding the carrier of passengers to the same degree of diligence in all cases where one has been received as a passenger, on the principle that if “aman undertakes to do a thing to the best of his skill, when his situation or profession is such as to imply skill, an omission of that skill is imputable to him as gross negligence.” Shiells v. Blackburne, 1 H. Bl. R. 115, 158; 2 Mees. & Welsh., 143. In the ease of Philadelphia & Read. R. R. Co. v. Derby, 14 How. 468, it was held that “ if plaintiff was lawfully on defendant’s railroad at the time of the collision, and the collision and consequent injury to Mm were caused by the gross neglect of one of the servants of defendant then employed on the road, he was entitled to recover, notwithstanding the circumstance that he was a stockholder in the company, and was riding by invitation of the president, paying no fare, and not in the usual passenger car.” It was also observed that “when carriers undertake to convey persons by the powerful and dangerous agency of steam, public policy requires that they should be held to the greatest possible care and diligence, and whether the consideration for such transportation be pecuniary or otherwise, the personal safety of the passengers should not be left to the sport of chance or the negligence of careless servants. Any negligence in such cases may well deserve the epithet of gross.” This case was followed in the case of Indianapolis R. R. Co. v. Horst 93 U. S. 291; Steamboat New World v. King, 16 How. 469; New York Cen. R. R. Co. v. Lockwood, 17 Wall. 357.

In section 528, Angelí on Carriers, it is stated that “the circumstance that the passenger is a steam-boatman, and as such is carried gratuitously, does not deprive him of the right of redress enjoyed by other passengers.” If the above authorities go no further, they at least conclusively settle the- question that a gratuitous passenger can recover for an injury occasioned by the gross neglect of the carrier, and also, that in such cases any negligence is gross negligence. This latter principle has been recognized by this court in the case of McPheeters v. Hann. & St. Jo. R. R. Co., 45 Mo. 26, in which Judge Wagner observes that “ counsel for appellant lay great stress on the assumption that gross negligence should be proved before defendant could be held liable. In England it is now the course of adjudication, and definitely settled, that there is no differenee between negligence and gross negligence, tbe latter being nothing more than the former with the addition of a vituperative epithet.” The cases of Brady v. Steamboat Highland Mary, 17 Mo. 461, and Gray v. Mo. River Packet Co., 64 Mo. 47, to which we have been cited, do not apply. In the former the only point decided was that “ negligence is not a conclusion of law simply from the fact that a boat passed a dangerous point in the river, known to be difficult to pass,- in the night.” In the latter case the principle contended for by defendants was said to be correct when applied to a mere mandatory as contradistinguished from a common carrier.

While the fifth of plaintiff’s instructions, from the failure of the court to insert the words “ from the evidence ” after the words “ think ” and “ believe,” when they occur therein, is objectionable in its phraseology, and subject to the criticism made by counsel, we are of the opinion that the jury-could not be misled by their non-insertion, as' they were necessarily implied.

The evidence tended to show that plaintiff was incapacitated by the injury to transact business for three months, during which time he suffered great pain; that he was still suffering from it, and that it was of a permanent nature. These matters were properly referred to the jury for consideration by them in their estimation of damages; and the question as to whether the ■ injury was occasioned by the negligence of defendants has been fairly submitted to the jury. The judgment will be affirmed,

with the concurrence of the other judges.

Affirmed.