McCoy v. Kansas City, St. Joseph & Council Bluffs Railroad

Ellison, J.

— 1. We do not consent to the proposition, so ably argued by appellant’s counsel, that the plaintiff cannot recover in this action because the petition did not “allege the lease, and that the act was done by the lessee.” The law is well settled that the lessoris as much bound for the loss in such case as the lessee, even though the engine doing the injury belonged to the lessee and was being operated by its immediate servants. The action in the latter case may be brought directly against the lessor, and the act charged in the petition as the act of the lessor, the original owner of the road. The lessee, in this state, who takes by permission of the statute authorizing the lease, but with the express reservation that the lessor shall not escape any of the responsibilities it owes to the public, is, so far as the public is concerned, the mere agent of the lessor. In an action against the principal for the act of his agent, and against the master for the act of his servant, the petition charges the act to have been committed by the principal or the master, without naming the agent or servant; and proof that the act was com-, mitted by the agent or servant supports the allegation. Bliss Code Pl., sec. 158; Bennett v. Judson, 21 N. Y. 238. In such case the fact is pleaded according to its legal effect.

So it will be found, in the instance precisely of such actions as the one under consideration, the petition charges the act as having been committed by the defendant corporation, and the fact that it turns out in proof that it was committed by an engine under the control of a lessee of the defendant does not affect the right of recovery. There is, in such case, a legal connection between the allegata and probata.

In Stearns v. Railroad, 46 Mo. 95, the action was to recover for damages occasioned to plaintiff’s property by renson of the negligent escape of fire from an engine. The declaration expressly charged that the ■property in question was “wholly destroyed by fire communicated by a locomotive engine of the said railroad corporation.”

The evidence showed that the defendant had leased its said road long prior to the fire, and had ceased to run any cars thereon, that the engine which did the damage was under the control and management of the lessee. This, it was held, constituted no defense, and the plaintiff recovered. The court says: “ The lessees may maintain and operate the road. They may have the whole control and management of it, but the lessors can not thereby be exonerated for any neglect of duty or liability imposed upon them by law.” The court further says : “ The engine, therefore, by which the fire complained of was set, was the engine of the defendant, within the meaning of the statute upon which the liability of the defendant depends.” See also Abbott v. Railroad, 80 N. Y. 27; East St. L. & C. Railroad v. Gerber, 82 Ill 632. In Freeman v. Railroad, 27 Minn. 443, the petition alleged the act as having been occasioned “ by the negligence of defendant.” The defense was that defendant was not operating the road, and put in evidence a lease for 999 years to the company operating it.

The trial court told the jury that the company actually operating the road was liable, but did not say that exonerated the defendant. Plaintiff had judgment, which the supreme court affirmed.

In Nelson v. Railroad, 26 Vt. 717, the action was trespass for killing plaintiff’s cow “alleged to have happened by the neglect and refusal of the defendant to erect a fence upon the side of their road.” The evidence showed that the defendant had transferred its property by lease to another railroad company, which was operating the road, and actually did the injury to plaintiff. It was held that the lessor was liable in that form of action. Redeielb, Oh. J., said: “ The lessors must, at all events, be held responsible for just what they expected the lessees to do, and probably for all which they do, as their general agents. For the public can only look to that corporation to whom they have delegated this portion of public service. Certainly they are not bound to look beyond them, although they doubtless may do so. The lessors should see to it, that their road is properly fenced, before they suffer it to be run by others.”

The same rule is observed in Railroad v. Barron, 5 Wall, 90. The action was brought against the Illinois Central Railroad Company “for the death of a passenger killed by its negligence.” Yet the plaintiff was permitted to recover, although the evidence showed that the injury was inflicted by the lessee of defendant. The court says: “The question is not whether the Michigan company is responsible, but whether the defendant, by giving to that company the privilege of using that road, have thereby, in the given case, relieved themselves from responsibility ? The question has been settled, and we think rightly, in the courts in Illinois holding the owner of the road liable.”

In Gates et al. v. Watson, 54 Mo. 585, our supreme court recognizes the principle that a pleader is not required to set out the evidence by which he expects to recover, but it is sufficient to plead the fact according to its legal effect. The defendants were sued on a contract as for goods sold and delivered. There was no averment of a partnership between defendants and a third party not made a defendant. When plaintiffs sought by the evidence to bind the defendants as partners, it was objected that no partnership was averred in the petition. The trial court sustained the objection. The supreme court, through Vories, J., held that the petition might properly aver that the contract sued on is the contract of .defendants ; “and to prove this averment he may show that the contract was made by the parties sued through an agent authorized to make it for the defendants, or what is the same thing, he may show that the defendants and another were partners, and that the contract was made by such partner for the benefit of the firm in the usual course of their business. A party is not bound in his pleadings to set forth the evidence by which he proposes to make out his case.”

II. One of the quéstions raised by the pleadings and tried in the case was the construction of the engine from which the fire was thrown with reference to its liability to throw fire from its smoke-stack. It appears the witness, William Broderick, did not know the number of the engine, and could not identify it as railroad employes usually identify them. Yet it does appear that he had some knowledge of the engine that usually pulled the train which ran between Bigelow and Rule, the same train which engine 193 was pulling on the day the fire occurred. The witness, in other parts of his deposition, stated the extent of his knowledge touching the identity of the engine. He was the second witness introduced and the record does not show that at the time his deposition was read anything had been developed in the evidence which would apprise either the court or plaintiff’s counsel that the engine in controversy was not the one which had made the usual daily run between those points The objections made by counsel for defendant did not apprise the court of the fact afterwards developed in defendant’s evidence, that another engine had been substituted in lieu of number 193 and had made usual daily runs when 193 was supposed to have been running Under these circumstances it was not error to permit Broderick to identify it in any way he could, and give evidence tending to show the defective construction of what he had good reason to suppose to be the engine in controversy. Had defendant’s counsel stated to the court, at the time of making their objection, that they could and would show that engine 193 had been laid off and another substituted for it in the usual runs at place and time spoken of by the witness, then it would have been improper to admit the interrogatory objected to until defendant had failed to show the fact which rendered it inadmissible. It is often the case that a plaintiff is unable to identify an engine, by number or as exactly as can be done by servants in charge of it. Having failed to specify the reason why such evidence was inadmissible, defendant’s only remedy would have been, after the introduction of their evidence showing that a different engine usually made the run, at the time spoken of by Broderick, to have asked a proper instruction limiting the consideration of such evidence to such only as applied to engine 193. It is undoubtedly true that in the trial of such cases as this the evidence should not knowingly be admitted covering other engines than the one complained of. What is said applies with equal force to other features of the evidence objected to. We discover no objection to the instructions. They are in harmony with the law as declared by the supreme court of this sta'e in similar cases.

We are of the opinion that the record shows no reversible error. The judgment of the lower court is, therefore, affirmed.