11 S.W. 751 (Mo. 1889), Whitehead v. St. Louis, Iron Mountain & Southern Railway Co.

Citation:11 S.W. 751, 99 Mo. 263
Opinion Judge:Black, J.
Party Name:Whitehead v. The St. Louis, Iron Mountain & Southern Railway Company, Appellant
Attorney:T. J. Portis and Geo. H. Benton for appellant. Dinning & Byrns for respondent.
Case Date:June 10, 1889
Court:Supreme Court of Missouri
 
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Page 751

11 S.W. 751 (Mo. 1889)

99 Mo. 263

Whitehead

v.

The St. Louis, Iron Mountain & Southern Railway Company, Appellant

Supreme Court of Missouri

June 10, 1889

Appeal from Washington Circuit Court. -- Hon. John L. Thomas, Judge.

Affirmed.

T. J. Portis and Geo. H. Benton for appellant.

(1) The petition fails to state facts sufficient to constitute a cause of action. Whitehead v. Railroad, 22 Mo.App. 60; Snyder v. Railroad, 60 Mo. 413; Eaton v. Railroad, 57 N.Y. 382; S. C., note of Redfield, J., 13 Am. L. Reg. 665, 672. (2) The court erred in the instruction given to the jury on its own motion. Railroad v. Bartram, 10 Ohio St. 459; Evans v. Railroad, 56 Ala. 246; Railroad v. Nuzenn, 50 Ind. 141; Railroad v. Applewhite, 50 Ind. 540; Cheney v. Railroad, 11 Md. 121; Railroad v. Proctor, 1 Allen, 267; Johnson v. Railroad, 46 N.H. 213; Flower v. Railroad, 69 Pa. St. 210. (3) The court erred in refusing to instruct the jury as requested by defendant. Authorities, supra.

Dinning & Byrns for respondent.

The facts and circumstances of this case make defendant liable to plaintiff as a passenger. The boy was in the caboose with the consent and approval of the conductor in charge of the train. The conductor represented the company. McGee v. Railroad, 92 Mo. 218; O'Donnell v. Railroad, 9 P. F. Smith, 239; Railroad v. Chenewith, 2 P. F. Smith, 379; Wood on Railroads, p. 1083; Baltimore City v. Klein, 61 Md. 33; Siegrist v. Arnot, 86 Mo. 200; Steamboat v. King, 16 Howard, (U. S.) 474; Dunn v. Railroad, 58 Me. 187; 86 Penn., p. 144; 20 Minn., p. 125; Walton v. Railroad, 107 Mass. 108, and cases cited; Ramsden v. Railroad, 104 Mass. 117.

OPINION

Page 752

[99 Mo. 265] Black, J.

Plaintiff, by his guardian, brought this suit to recover damages for injuries, and recovered a judgment for five thousand dollars from which defendant appealed.

As objections are made to the petition itself, the sufficiency of the evidence to support the verdict, and to the giving and refusing to give instructions, it is necessary to deal somewhat in the details of the case. The petition states that plaintiff entered a caboose car attached to one of defendant's freight trains, in which [99 Mo. 266] it carried passengers; that the defendant's agents permitted plaintiff to enter the car as a passenger, and then undertook to carry him from De Soto to Belmont. The circumstances of the accident are then set out, coupled with the various allegations of negligence on the part of defendant, which circumstances will appear from the following statement of facts as disclosed by the evidence.

Frey was a brakeman on the train in question, and boarded with the plaintiff's mother at De Soto. The plaintiff, a lad fourteen years of age, desired to go over the road with Frey, and the plaintiff's mother gave her consent, provided the conductor would permit him to go. Frey and the boy got on the freight train at De Soto at about seven o'clock in the afternoon, at which time the train left. It does not appear what was said to or by the conductor, but it does appear that the boy remained in the caboose without objection. The boy's presence in the caboose, and his purpose to make the trip, without the payment of fare, was known to the conductor, and the only inference to be drawn is, that he gave his consent to the project.

At about two o'clock in the morning, and some fifty miles distant from De Soto, the train, which was composed of twenty-two loaded freight cars and the caboose, reached the top of a hill. As it passed over the hill, the caboose...

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