# Berry v. Missouri Pacific Railway Co. > Supreme Court of Missouri · February 5, 1894 · 124 Mo. 223 URL: https://www.frixlaw.com/law-library/cases/8011467 ## Case - **Full name:** Berry v. The Missouri Pacific Railway Company, Appellant Wagner v. The Missouri Pacific Railway Company, Appellant Zuendt v. The Missouri Pacific Railway Company - **Court:** Supreme Court of Missouri - **Decided:** February 5, 1894 - **Citations:** 124 Mo. 223; 25 S.W. 229; 1894 Mo. LEXIS 284 - **Precedential status:** Published - **Opinion:** Dissent by Black - **Judges:** Antt, Babolay, Black, Burg, Ess, Martin, Sherwood - **Cited by:** 18 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8011467 ## Opinion text Black, C. J. I do not agree to the opinion prepared by Judge Martin, filed in these cases, and will *295 endeavor to state the conclusions which I have reached, in as few words as possible. ■ The record now before us, it may be stated at the outset, is different in several material and important respects from the record which was before us in the Wagner ease, reported in 97 Mo. 523 . By taking a few circumstances disclosed by the evidence, the conclusion may be reached that a jury could properly find that Berry, Wagner and Zuendt were passengers, and hence the defendant owed to them that high degree of care due by a common carrier to its passengers; but, if we take the case as made by ail the evidence now before us, and give to the evidence which stands unquestioned and undisputed due consideration, it seems to me a finding that the deceased were passengers ought to be set aside by the court, and, this being so, the cases ought not to go to the jury on any such a theory of fact. The following facts appear by clear and unquestioned evidence: First, the train in question was a special or work train made up and ordered out on Sunday to carry supplies to the track layers, then at work on the road, and for no other purpose; second, the conductor Mr. Yaughan had strict orders not to carry passengers on such special work trains. The inquiry then arises, does the evidence show that the deceased got upon this train, knowing that they did so in violation of the rules of the company, and does this fact appear so clearly that a contrary finding ought not to stand. In answering this question it is to be borne in mind that the deceased were, not strangers to this road and the persons operating it. They all resided in or near. Jefferson City,' and the road extended out from that place for a short distance. They were acquainted with Mr. Yaughan, the conductor, and with Mr. Dewey, the road master. These facts crop out at almost every *296 page of the evidence. The company published its time card in Jefferson City, which disclosed the fact that a train carrying passengers left daily, except Sundays. There is evidence that it was well known in Jefferson City that passengers were not carried on Sundays. The week day train with a combination coach for passengers, left at 6:30 A. M., while the special train in question did not leave until 9 o’clock. Wagner in some way got the information on Saturday that the construction train would go out on Sunday, and on Saturday he endeavored to obtain permission from Mr. Dewey to go out on it, but Mr. Dewey refused the request. Mr. Dewey thinks Wagner asked the permission for himself, Berry and Zuendt. Dewey refused the request on the ground that it was against the rules to carry persons on such trains. Under these circumstances the deceased and others, ‘some eight or ten in all, appeared at the depot at 9 o’clock for the purpose of going to Russellville on the train. It is a fact of no little importance that they got on the train paying, and intending to pay, no fare, nor were they supplied with passes or permits of any kind. When some of the cars ran off the track before getting out of the Jefferson City yards, most of the persons in - the combination car went back. The deceased and two others saw fit to get into a box car still attached to the engine, which was loaded with railroad iron and was obviously not designed or intended to carry passengers. To my mind it is perfectly clear that the deceased went out on this train for a sort of Sunday frolic, knowing they boarded the train in violation of the rules of the company. Any other finding would, to my mind, be absurd and ought not to stand.' Argument can not cover up these stubborn facts, all of which point to the one conclusion. As these men took this train in known violation of the rules of the company, paying, and *297 intending to pay, no fare, they can not be, and ought not to be deemed, passengers, and this is true though the conductor acted throughout the trip in a passive way. The relation of common carrier and passenger did not arise, and in my opinion the cases ought not to go to the jury on the ground that the deceased were passengers. 2. As the husbands of the plaintiffs were not passengers, it remains to be seen what, if any, care the defendant was bound to exercise; and in considering this question it must be remembered that these men were on the train with the knowledge of those placed in charge of it by the defendant. There can be no doubt but a duty often arises to use care to avoid injury to a wrongdoer; and this duty does not stand on, or arise out of any contract between the persons injured and the person inflicting the injury. It rests upon the general principle that every person must use care in the prosecution of his business to avoid injury to others, and this duty rests upon him whether he conducts his business himself or by his servants. He can not relieve himself of this duty of employing servants to prosecute his business. In the application of this general principle in cases where persons are wrongfully upon cars and the like, it is said: “So a person who boards a train without invitation, right or payment of fare, a child entering a car to play, a person who steals a ride upon the engine, a person who rides in a mail car without right and unknown to the company’s servants, a person who clandestinely rides upon the steps of a car, or climbs into the caboose, without having a ticket or paying fare, a person who is attempting to ‘dead-head’ or ‘beat’ his way, is not a passenger or entitled to protection as such. The care and diligence due to such a person has been considered in an earlier section;” and in the section to which reference *298 is made it is said: “The carriel' is not under the same degree of obligation as to care and diligence to guard against injuries to strangers as he is in case of those against passengers. His duty to the former is governed by the general principle of law that everyone is obliged, upon considerations of humanity and justice, to conform his conduct to the rights of others, and in the prosecution of his lawful business to use every reasonable precaution to avoid their injury.” Hutchinson on Carriers [2 Ed.] secs. 555 and 553. And it is said in Shearman and Redfield on Negligence: “It is universally conceded that a trespasser can recover, not only for willful injuries, but also for any gross negligence; and, as will presently appear, he can recover for any want of ordinary care in avoiding injury to him, after his presence is known.” and it is then said: “It is now perfectly well settled that the plaintiff may recover damages for an injury caused by the defendant’s negligence, notwithstanding the plaintiff’s own negligence exposed him to the risk of injury, if such injury was proximately caused by the defend- ' ant’s omission, after becoming aware, of the plaintiff’s danger, to use ordinary care for the purpose of avoiding injury to him.” 1 Shearman and Redñeld on Negligence [4 Ed.], secs. 98 and 99. The same authors go on to say (sec. 99) that they think the true rule, and that which is most universally accepted, is even stronger than the one just stated; for, under some circumstances, it becomes the duty of persons in charge of dangerous machinery to use ordinary care to discover trespassers.” The history of this doctrine and the rule itself is well stated by Judge Thompson in his notes to Waterbury v. Railroad, 17 Fed. Rep. 679. He says: “But while the carrier does not owe to trespassers on his vehicle the special duties which he owes to passengers, *299 he stands under the same general duty of taking ordinary or reasonable care not to injure them, which every person is bound to exercise toward every other person, and even towards animals, although such persons or animals may be found trespassing on his premises. This rule had its origin in the leading case of Davies v. Mann, where it was laid down in the English court of exchequer, that if A has negligently exposed his property to injury, and B has negligently injured it, B must pay damages to A, if B could, by the exercise of ordinary care, have avoided injuring it. That case was decided in 1842. It has met with almost uniform approval in England and in this country, from that day to this. A rule of law which has been almost uniformly conceded with regard to property when helplessly exposed can, by po process of reasoning, be denied in case of injuries to human beings when exposed in the same way; and though there is some wavering in the decisions, it is now generally so applied. The case of Rine v. Railroad, 88 Mo. 393 , and Barker v. Railroad, 98 Mo. 50 , to which reference' has been made, hold, and correctly hold, that in general it is not the duty of an engine driver to be on the watch for trespassers, but that, under some circumstances, it becomes his duty to be op the alert; as in case of passing through a populous district, or at any other place where experience shows persons are habitually on the track. But those cases do not stop here. They both assert, as had been before and as has since been held by this court, that it is the duty of the engineer to use all reasonable care to avoid injury to one known to be on the track. The presence of the trespasser being known to the engineer, it becomes the duty of the latter to use ordinary care to avoid injury to the former. In the case of Whitehead v. Railroad, 99 Mo. *300 264 , the boy was riding in the caboose attached to the freight train with the knowledge and consent of the conductor, and there was no pretense of a claim that he knew or had any notice of a rule prohibiting persons, other than employees, from riding on that or like trains. It was said in the course of the opinion, “even had he known he was on the train in violation of defendant’s rules, still, being there with the consent of the master of the train, the company owed him a duty, at least ordinary care; and for a breach of that duty it is liable in damages.” The observation was unnecessary, for there wTas nothing in the case to overcome the prima facie authority of the conductor to allow him to ride in the caboose; but, being on the train with the consent and knowledge of the conductor, the observation states a correct proposition of law. Persons in charge of a train are not ordinarily under any duty to look out for trespassers, but .when a person is known to be on a train by those in charge of it, they are in duty bound to use ordinary care to avoid injuring him, though he may be a wrongdoer. Knowledge of the presence of the wrongdoer raises this duty. A failure to use ordinary care under such circumstances is but little short of a willful injury. It stands as a conceded fact, on the evidence in these cases, that the conductor and engineer knew the deceased persons were on the train, and it follows from what has been said that they were in duty bound to use ordinary care to avoid injury to the deceased, and this is true though the deceased persons were not entitled to that degree of care due to passengers as such. This duty was not a mere temporary one. It continued as long as the deceased remained on the train to the knowledge of those in charge of it. 3. If these judgments are to be reversed without remanding the causes for new trial, it must be either *301 because there is a failure by the plaintiffs to produce substantial evidence of a want of ordinary care on the part of the defendant, or because the court should, as a matter of, law, have declared the deceased guilty of contributory negligence in taking a seat on the open flat car. The tender was in front of the engine, that is to say, the engine and tender were being operated backward. The train was running on a down grade of sixty feet to the mile, when the engine and some of the ears ran off the track. There is substantial evidence to the effect that the train was running at the rate of twenty miles per hour, and that this was a dangerous rate of speed on a down grade with the tender in front of the engine. In view of all this it seems to me we can not say there is a failure to produce substantial evidence of the want of ordinary care on the part of those in charge of the train. I think it may, and ought to, be said that the deceased were guilty of negligence in taking a seat on the flat car on a board resting on kegs not in any way made fast to the deck of the car; but the question still arises, whether their negligence contributed to the injury. If the defendant’s negligence was the direct and proximate cause of the disaster, the negligence of the deceased will not defeat a recovery. Under the evidence a jury might well find that the wreck and consequent loss of life was due to the negligent rate of speed of the cars, and that this negligence was the proximate cause of the loss of life. On this point the evidence is the same as it was before in the Wagner case, and what was then said on this subject is applicable to these cases as they are now presented. 4. The instructions relating to contributory negligence do not call for any comment. The cases were all placed before the jury on the theory that the defend *302 ant was bound to use only ordinary care to avoid injury to the deceased, defined in the instructions to be “such care as an ordinarily prudent person usually exercises in the same situation and under the same circumstances as to the business in hand.” It being a conceded fact that the persons in charge of the train knew the deceased were on it, the instructions as to ordinary care are correct, and the judgment in all of the cases should be affirmed, unless there is something in the other instruction prejudicial to defendant. Now, the second instruction given at the request of the plaintiff in each case states: ‘ ‘If the deceased was on the train of the defendant at the time of the alleged accident with the knowledge and consent of the conductor as the master thereof for the purpose of transportation, then he was a passenger thereon, and this is true whether he paid fare or not.” The first instruction given by the court of its own motion in the Berry case, states that if the jury believe certain things which are recited, “then said Green C. Berry was not, in law, a passenger on said train and the plaintiff, under the pleadings and' evidence in this case, is not entitled to recover.” If we are correct in what has been said, this second instruction given at the -request of plaintiff should not have been given; for, upon all the evidence, the jury could not, of right, find that the deceased were passengers. It is evident from this instruction and • from the instruction given by the court of its own motion that the cases were tried on the theory that the deceased persons were passengers and on no other theory. As the instructions stand I do not see how the jury could find for the plaintiffs without first finding that their husbands were passengers. The inquiry then arises, whether ordinary care to a passenger is the *303 same thing as ordinary care to a technical trespasser. In other words, is ordinary care to one who is rightfully on a train the same thing as ordinary care to a wrongdoer? I am unable to see how these questions can be answered in the affirmative. Ordinary care is that care which a prudent person would use under like circumstances, and the fact that the deceased persons were wrongfully on the train, is a circumstance to be considered. I think any prudent person would take more care to avoid injury to persons. around him by invitation or right, than he would to avoid injury t'o those present without right. If the deceased were passengers, then they were on the train by right, and the jury must have understood the instructions. These are close cases on the' issue of fact as to whether the defendant was guilty of negligence and the instructions ought to be free of any just complaint; and it seems to me the plaintiffs obtained an undue advantage by having their deceased husbands treated as passengers when no such relation existed between them and the defendant. I conclude, therefore, that the judgments should be reversed and causes remanded for new trial. SEP ABATE OPINION. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8011467. Public record. Not legal advice.