St. Louis & San Francisco Railroad v. Sanderson

1. Carriers. Passengers. Master and servant. Evidence. Where deceased in company with another got upon the platform of a passenger train of appellant about ten o’clock at night, intending to ride a distance of about a mile, the fare being five cents and the conductor did not see these two parties on the platform, nor did they offer to pay fare, though the companion of deceased testified that they were ready and willing to pay same and expected to do .so when the conductor should ask them. Whether under these circumstances decedent was a passenger was a question for the jury. 2. Same. -Master and servmit. Conductors. The general rule that a master is not responsible for acts done by the servant outside the line of his duty and not in the service of the master, has no application to a case where a railroad passenger conductor, the alter ego of the company, himself inflicts the injury on the passenger. 3. Inconsistent Verdict. Exonerating one defendant and holding miother. Code 1906, section 4944. An action against a railroad company and its conductor for the wrongful killing of a passenger by the conductor is both joint and several and although both are equally liable, the liability is based on distinct and different legal principles, the servant because of his personal trespass and the company because of its failure to discharge its nondelegable duty towards the public in not having a competent conductor. 4. Same. In such case a verdict for plaintiff against the railroad company and against the plaintiff in favor of the conductor, though apparently inconsistent, presents no ground for reversal of the judgment against the company, especially in view of Code 1906, section 4944, providing that one of several appellants will not be entitled to a judgment of reversal because of error in the judgment against another not affecting his rights.

Appeal from the circuit court of Monroe county. Hon. John M. Mitchell, Judge. Suit by Mrs. Ida Sanderson and others against the St. Louis & San Francisco Railroad Company et al. From a judgment for plaintiff against the railroad company,. the company appeals, and plaintiffs prosecute a •cross appeal from the judgment in favor of the other defendant. This is a suit by the appellees, the widow and children of one J. P. Sanderson, for damages for killing of Sanderson by the conductor, Willis, in charge of a passenger train of the appellant railroad company. The record •discloses the fact that Sanderson, in company with a young man named Pennington, got upon the platform of a passenger train of appellant about ten o ’clock at night, intending to ride from Amory to Aberdeen Junction, a distance of one mile. The fare was five cents. The •conductor did not see these two parties on the platform, nor did they offer to pay fares, though Pennington says that they were ready and willing to pay same and expected to do so when the conductor should ask them. The conductor testified that he did not, as a rule, work the train between these two points, but that he occasionally collected fares from persons traveling that distance, and that he did not see the deceased and his companion, nor did he know that they were on the train that night. When the train reached Aberdeen Junction, deceased and his companion got off on the side of the car, and the conductor and two of the passengers stepped ■off, when the conductor borrowed a pistol from one of the passengers and fired, killing Sanderson. The defense is that he did not shoot at Sander-son, and did not know he was in that direction, and that the killing was purely accidental. This question, however, was submitted to the jury; it being the theory of the appellees that the killing was not an accident, or that at least the conductor was guilty of gross, wanton negligence in firing the pistol. Suit was brought against the railroad company and the conductor, and the jury returned a verdict for ten thousand dollars against the railroad company, from which this appeal comes. "We contend that the testimony showed that deceased was not a passenger at the time of his death, and, in fact, had not been a passenger on the Memphis-Aberdeen train that night. That since he was not a passenger, the act of the conductor, when he shot and killed Sanderson, was totally beyond the scope of his employment and authority, and entirely disconnected from any of his duties due his master. For which act the appellant was not liable. The learned trial judge held that unless Sanderson was a passenger at the time of his death, plaintiff could not recover, but held that the question of carrier and passenger was one to be decided by the jury. We submit that the relation of carrier and passenger never existed between the appellant and deceased. A common carrier of passengers holds itself out as being in the business of carrying passengers from one place to another for hire, upon the intending passenger’s performance of certain conditions, and his submission to certain reasonable regulations established by the carrier. The relation of carrier and passenger necessarily arises from contract, either express or implied. The intending passenger must offer himself as a passenger, and the carrier must accept him as a passenger, before the relation exists. It is not essentia] that the passenger have a ticket, neither does the fact of his having a ticket conclusively show him to be a passenger. The acceptance by the carrier may be either express or implied, but there must be an acceptance. Since the carrier owes a very high degree of care to the passenger to carry him safely, or as our court has expressed it in the case of- Railroad, Go. v. Humphrey, 83-Miss. 733, it owes the passenger the “duty of exercising-the utmost care and diligence, ’ ’ it must also be true that, the passenger must have complied with all the reasonable rules and regulations of the carrier as a passenger, and have been accepted as a passenger, before the relation begins. The passenger must have placed himself in the care of the carrier or directly within its control, with the tona fide intention of becoming a passenger, and must have been accepted as such by the carrier. In this case we do not have to resort to any presumptions; or surmises, for we have the testimony of the companion of Mr. Sanderson who was with him from the time he boarded the train at the depot in Amory until he was, killed. Charge No. 9 makes the appellant an insurer of the safety of its passengers from injury from all sources, which is not the law as shown by the following authorities. 3 Thompson on Negligence, § 2721; Railroad v. Jopes (U. S.), 142 TJ. S., p. 28, 35 Law Ed., p. 919. The court erred in not entering a judgment for appellant based upon the verdict of the jury. These three assignments will be considered together. This suit was filed against this appellant, T. P. Willis, and the Kansas City, Memphis & Birmingham Bailroad Company as defendants. This suit is based upon the negligence of Willis, the-conductor, in shooting his pistol, and the appellant is held liable on the doctrine of “respondeat superiorW There can be no contention that the master authorized or actively participated in the firing of the pistol. The verdict of the jury found for the plaintiff against the St. Louis & San Francisco Bailroad Company in the sum of ten thousand dollars. The verdict finds in favor of the defendant Willis, with the same force and effect that it finds against the appellant. It says as to Willis: We find that your conduct was lawful, and that deceased was not killed either willfully or negligently'by you, but that he was killed as a result of an accident pure and simple, for which you are in no way responsible. The same verdict says as to the appellant: We find against you because Sanderson was a passenger at the time he was killed, and you owed him the duty not to negligently injure him, and that you violated this duty when your conductor or agent shot him, which was a negligent act of your agent for which you, as the master, are responsible. That the verdict was in favor of Willis is well settled by the following authorities: Railroad Go. v. James (Texas), 10 S. W. 744; Milling Co. v. Abernathy, 35 N. E. (Ind.) 399; Dor emus v. Railroad Go., 54 L. R. A. (Wash.) 649; Railroad Go. v. Clarice, 85 Miss. 651. If the appellant and Willis were joint tortfeasors in the killing, then we would have no right to complain of this verdict, but to be joint tortfeasors, the parties must all actively, in person, participate in the wrong, and the master could only participate in it by authorizing the wrong to be done. Each tortfeasor is himself guilty of a wrong towards the injured independent of the wrong committed by the other tortfeasors. Neither can there be any right of contribution among them, for all of them are in pari delicto. This is in no way true in this case. If deceased were a passenger and was negligently killed by Willis, then appellant is liable in this case technically in trespass upon the case, and Willis would be liable in trespass. It is impossible for appellant, however, to be liable and Willis not liable. Tet Willis could be liable for the killing and appellant not liable. As for instance, if Sanderson were not a passenger, and was negligently or intentionally shot by Willis. This verdict in acquitting the active participant of any negligence, and yet in holding his principal liable, is contrary to the law and the evidence, and shows upon its face that it is the result of prejudice and passion against this appellant. We know of only one authority which apparently seems to uphold such a verdict,, and that is in this state. The case of Railroad Go. v. Clarke, 85 Miss. 691. It is possible that the facts of that case and these are so different that they may be distinguished. If the act causing the injury in that case was one of nonfeasance of the engineer, the company would be liable and the engineer not. The acts complained of in the Clarke case were further part of the ordinary duties of the engineer, in the running of his train, for which the master is made liable to the public, to strangers. We could not be made liable to the public or to any stranger for the unauthorized shooting of Willis. The opinion in the Clarke case assumes that the engineer and railroad company were equally liable, in other words, if the engineer be liable in any phase of the case, then the railroad is liable. But in our ease the appellant would not be liable unless deceased were a passenger, though Willis might. We now invite the attention of the court to some of the authorities which sustain our views about this verdict. In the case of Railroad v. Jopes, a Mississippi case reported 142 U. S., p. 28, 35 Law Ed. 919; Dor emus v. Root et al., 23 Wash. 710, 54 L. R. A. 649; Gulf C. & 8. Fe R. Co. v. James, 75 Tex. 12, 10 S. W. 744; Howard v. Jackson, 91 Ga. 319, 18 S. E. 132; Kinkier v. Júnica, 84 Tex. 120, 19 S. W. 359; Gulf C. & 8. Fe R. Co. v. James, 75 Tex. 12, 10 S. W. 744; June v. Grimmett, 4 W. Va. 104; Westfield Gas é Mill Co. v. Abernathy, 8 Ind. App. 73, 35 N. E. 399; Hayes Admx. v. Telephone Co., 218 111. 414, 2 L. R. A. (N. S.) 764; Stevick v. N. P. R. R. Co., 39 Wash. 506, 81 Pac. 1001McGinnis v. Railroad Co. (200 Mo.), 9 L. R. A. (N. S.) 880. This was a passenger train calling for passengers at -every station, throwing open its doors to receive them, and they are as a matter of law charged with the knowledge of those who take passage at regular stations where the trains regularly stopped to take on passengers. The ■company cannot escape from its liabilities under the facts of this case by saying that they did not see these young men get on; it was their business to see them and they are charged with the knowledge the facts established. These two parties rode but a single mile, to another regular stop on this railroad, the Aberdeen Junction, and there they alighted at the regular place, not at a station house to be sure, but in the path by the side of the track beaten down by the inhabitants of the little village, and where the patrons of the road alighted and got onto said train. The deceased and his companion certainly got on at Amory and they certainly got off at the Junction where deceased was found dying, and every incident and every presumption in favor of the deceased being a passenger is raised from the facts and .the circumstances in the case. 3 Thompson on Negligence, §§ 2635 and '2640; Greed v. Pa. Railway Go., 27 Am. Rep. 693; Railivay v. O’Keefe, 61 Am. St. Sep. 78, and cases- there -cited; note, Perkins v. Railway Go., 82 Am. Dec. 293, and -cases there cited; 4 Elliott on Railways, § 1578. And, also, says Judge Elliott in his work on Railroads, vol. 4, sec. 1578, “We think it is safe to say that the general rule is that every one on the passenger train -of a railroad company, and there for the purpose of -carriage, and with the consent expressed or implied of the company, is presumptively a passenger.” 3 Thompson on Negligence, § 2675; note, Perkins v. Railroad, 82 Am. Dec. 293; Greed v. Railway, 27 Am. Rep. 693; Railway v. Books, 98 Am. Dec. 229. Of course, the bona fide intention to become a passenger and to pay the consideration for so becoming ■when called upon so to do must exist before that is presumed, and if there is lurking in the heart of the traveler a disposition to beat the railroad company out-of its stipend and to rob it of its revenue, the burden rests upon them to show it. 6 Cyc. 536, 537, 538, 539; 3 Thompson on Negligence, § 2638; 4 Elliott on Railroads, § 1579; 2 Woods’ Railway Law, § 1037; note, Railway v. O’Keefe, 51 Am. St. Rep. 74, 75, 82; Webster v. Fitchburg Railway Go., 24 L. R. A. 521. Certainly this undisputed evidence indisputably shows the bona fide intention in the mind of the deceased and his companion; Sanderson is now dead-at the hands of the conductor of this train and cannot speak, but every fact and circumstance as set up by his companion who worked with him that day and who was going with him to his own home ought to be invoked in behalf of his innocency and good intentions. ‘ ‘ One who enters a railroad car intending in good faith to become a passenger is such in fact, ’ ’ says Judge Freeman in his note to the O’Keefe case, 61 Am. St. Rep. at page 82. Much is said in the brief and in the argument and in the evidence about Sanderson and Pennington paying no fare, but the payment of fares is not necessary to make them passengers. Our courts have so held and the courts generally have so held, and it is especially unnecessary in proving a relation under the circumstances of this case where the evidence shows that everybody was allowed to ride without the payment - of fare. Railroad v. Beardsley, 79 Miss. 417, 30 South. 660; Kurt v. Railroad Go., 40 Miss. 391; note, Railway v. O’Keefe, 61 Am. St. Rep. 85, 87; 3 Thompson on Negligence, § -2634 and 2642. Whether the deceased was a passenger or a trespasser, as we have already anticipated and as this court has already decided, was a question for the jury. Under all the circumstances that hedge in a question of this sort. the final judge and the best judge is the jury, and the-courts have so held. Railway v. Beardsley, 79 Miss. 417,. 30 South. 660; note, Railway v. O’Keefe,- 61 Am. St. Rep. 103; Arnold v. Railway Go., 2 Am. St. Rep. 542; Heggley v. Oilmen, 35 Am. Rep. 450; Gordon v. Way cross, 54 Am. St. Rep. 435. We do not think we ought to be called upon to argue-this subdivision of the case at'very great length in the-face of the well known position taken some time since-by this court. In bringing the suit, the St. Louis & San Francisco Railroad Company, a foreign corporation, and the Kansas City,' Memphis & Birmingham Railroad Company, a domestic corporation, and T. P. Willis, the conductor, were all made defendants in this case, as plaintiffs had a right to make them, and the jury were charged as they had a right to be charged and given to understand that they could find one or all of the defendants guilty of the wrong and injury, and this was a matter of discretion for the jury. It was not anywhere asked or snggested to the jury that if they visited no part of the. judgment for damages against Willis, that therefore the-railroad company, the real responsible party, would escape; that was not even suggested in the trial of tkecase. Usually the servant of the company is entirely impecunious and nothing can be made out of him and a judgment against him would amount to nothing. The-jury in the instant case brought in a verdict against the-St. Louis & San Francisco Railroad Company only, the real responsible defendant. It must be supposed that the plaintiffs and their counsel, when they brought the-suit and tried the case, brought it and tried it in the-light of the holding of this court in the case of Railway-Go. v. Clark, 85 Wis. 691. That it took no hazard in submitting to the jury the question of damages with all' the defendants in the case because they doubtless would not have hazarded a verdict with Willis as defendant had they jeopardized their entire recovery, for it would! have been a very simple proposition to have taken a non-snit as to Willis. Now, after the case has been fought out, and only in the face of the well known position of this court, we submit that we ought not to be called upon to re-open the question as to the inconsistence of the verdict. The Clark case distinctly holds that where the verdict rightfully convicts the master and wrongfully acquits the servant, it ought not to be set aside on motion of the master because of the acquittal of the servant. Our own court not only cites authorities from this state in support of the proposition, but cites a leading and well proved case from another state: Bail-road Go. v. James, 15 Am. St. Bep. 743, taking the same position.