Ephland v. Missouri Pacific Railway Co.

Ellison and Gill, JJ.

Af¡ce^hisTruc-ac" tions."new ques' We can not agree to the following opinion. We do not find anything in the record to justify the discussion contained the opinion.. Defendant did not ask to have the questions submitted to the jury, whether Lamb was a “hind” or swinging brakeman; or whether he had any duty to perform in the caboose, whether with the brake or otherwise; or whether he was acting in the line of his employment when he made the exclamations charged. All of defendant’s instructions are silent as to each of these matters discussed by Judge Smith.

EIsTwitn¿ssfty agÜnsuumseif. Defendant had but four refused instructions. The first was merely a demurrer to the evidence. The second was a peremptory direction to the jury t° accept as true anything plaintiff Eiay have testified to, which was against his interest. We decided a similar instruction to have been properly refused when the case was here before, 57 Mo. App. 162.

P1lera”?n“trS“' mana¿duay.e' The third (number 5) directed the jury to find for defendant, if they believed that the brakeman, Lamb, “was not in the west cupola, nor at the brake from the time the train left Butler until after the accident.” A part of the phraseology of this instruction is misleading. There was but one cupola,' though it was sometimes referred to as two, and witnesses spoke of there being an east and west side, but there were not two cupolas in fact. But' aside from that objection, there could not possibly have been any harm resulting to defendant from its refusal. The jury must have understood that they were not authorized to find against defendant unless they believed that the brakeman Lamb not only used the language attributed to him, but also *599that he set the brake. This was told to the jury by plaintiff’s own instructions, and such condition was put upon plaintiff’s recovery. If the jury found that Lamb set the brake just before the accident, it was the same as finding that he was “at the brake” before the accident.

brakeman’^*duty: ms rue ion. The fourth (number 6) refused instruction directed the jury to find for defendant, notwithstanding that Lamb made the exclamations attributed to him, and that plaintiff, in consequence, jumped from the train, if he made them wantonly, maliciously and without any • reasonable ground therefor. This would be a dangerous rule to announce. Plaintiff, while a passenger, had a right to protection and fair treatment from defendant’s servants. That a carrier’s servants, whose duty it is to observe the train and provide for its safety and the safety of the passengers by their assistance in its management, especially on the eve of accident, can wantonly throw the passengers into a state of terror, causing injury, and no responsibility attach to the carrier, we believe has not been decided anywhere. It is the duty of a brakeman on a train with brakes like the one in controversy to assist in stopping the train, whether an ordinary stop, or for the purpose of averting an accident. If, in the performance of that duty, he willfully and maliciously terrorizes and injures passengers, the carrier is responsible for his conduct. The instruction omits any reference as to this particular brakeman being in the line of his employment at the time- and place, but states broadly, without qualification, that although Lamb did the things charged, yet if he did them maliciously and wantonly, there was no liability. It was properly refused. We have held, though the rule does not have to be invoked in considering this particular instruction, that the carrier is responsible *600for the malicious and wanton acts of the servant to a passenger,.whether done in the line of his employment or not, if done during the course of the discharge of his duty to the master, which relates to the passenger. Eads v. R’y, 43 Mo. App. 545.

In our view the case was correctly tried on all the points presented and hence we affirm the judgment.

ON MOTION TO TRANSFER CAUSE TO THE SUPREME COURT.

Smith, P. J.

I deem the decision of the majority in the above entitled cause contrary to the following decisions of the supreme court and the St. Louis court of appeals, to wit:

I. Sherman v. R’y, 72 Mo. 63; Cousins v. R’y, 66 Mo. 572; Snyder v. R’y, 60 Mo. 419; Stringer v. R’y, 96 Mo. 299; Garretzen v. Duenckel, 50 Mo. 104.

II. Clark v. Hamerle, 27 Mo. 70; DeWitt v. R’y, 50 Mo. 304; Bank v. Murdock, 62 Mo. 70; Stocker v. Green, 94 Mo. 280; Crews v. Lackland, 67 Mo. 619; Maack v. Schneider, 57 Mo. App. 434; Carroll v. R’y, 60 Mo. 468.

III. Shirts v. Overjohn, 60 Mo. 308; State v. Brooks, 99 Mo. 137; Bogie v. Nolan, 96 Mo. 91; Payne v. R’y, 30 S. W. Rep. 148.

And I therefore order the cause certified to the supreme court in conformity to the requirements of section 6, article 6, of the state constitution.