22 Mo.App. 60 (Mo.App. 1886), Whitehead v. St. Louis, I.M. & S. Ry. Co.

Citation:22 Mo.App. 60
Opinion Judge:ROMBAUER, J.
Party Name:A. W. WHITEHEAD ET AL., Respondents, v. ST. Louis, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant.
Attorney:GEORGE H. BENTON, for the appellant: DINNING & BYRNS, for the respondents:
Case Date:May 04, 1886
Court:Court of Appeals of Missouri
 
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Page 60

22 Mo.App. 60 (Mo.App. 1886)

A. W. WHITEHEAD ET AL., Respondents,

v.

ST. Louis, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant.

Court of Appeals of Missouri, St. Louis.

May 4, 1886

APPEAL from the Jefferson County Circuit Court, JOHN L. THOMAS, Judge.

Reversed.

GEORGE H. BENTON, for the appellant: The petition fails to state facts sufficient to constitute a cause of action, because it fails to state that James N. Whitehead had paid his fare and was a passenger on the extra freight train, and fails to state that the extra freight train was a passenger-carrying train. Snyder v. Railroad, 60 Mo. 413; Robertson v. Erie Co., 22 Barb. 91; Isaacs v. Third Ave. Co., 47 N.Y. 122; Parker v. Erie Co., 5 Hun 57; Kimball v. Railroad, 26 Vt. 247; Shaw v. Railroad, 6 Eng. R. Cases 87; Navigation Co. v. Merchants' Bank, 6 How. (U. S.) 344; Railroad v. Nichols, 11 Am. L. R. (U. S.) 35; Railroad v. Derby, 11 How. (U. S.) 468; Steamboat v. King, 16 How. 469. The plaintiffs are not entitled to recover because the mother of James N. testified that she knew when she permitted her son to go on to the train for a free ride that the carriage of passengers was prohibited on that train by the regulations of the company. Eaton v. Railroad, 57 N.Y. 382; S. C., 13 Am. L. Reg. 665, with note by Judge Redfield; Dunn v. Railroad, 58 Me. 328; Thompson on Car. 328; Creed v. Railroad, 86 Pa.St. 139; Railroad v. Montgomery, 7 Ind. 474; Lucas v. Railroad, 33 Wis. 41; Thompson on Car. 345; Railroad v. Moore, 49 Texas 31.

DINNING & BYRNS, for the respondents: The petition is good, and to the maintenance of this action it is not essential that fare should have been paid, or that the " train was a passenger-carrying train." Thompson on Carriers, 328; Sherman v. Railroad, 72 Mo. 62; Wilton v. Railroad, 107 Mass. 108; Higgins' Guardian v. Railroad, 36 Mo. 418; Railroad v. Derby, 14 Howard (U. S.) 468; Railroad v. Montgomery, 7 Ind. 474; Gillenwaler v. Railroad, 5 Ind. 340; Railroad v. Muhling, 30 Ill. 9; Lucas v. Railroad, 33 Wis. 41; Thompson on Carriers, 344 and 345; Sherman and Redfield on Negligence (2 Ed.) sects. 263 and 264; Nolton v. Railroad, 15 N.Y. 444. The defendants' agents and servants knew of the regulation; if it was violated, they did it. " " The principal should bear the loss or injury arising from such violation, rather than strangers." Dunn v. Railroad, 58 Me. 187; Story on Bailments, sect. 558; Railroad v. Chenewith, 52 Pa.St. 380; Carroll v. Railroad, 1 Duer 578; Kelly v. Railroad, 70 Mo. 604; Railroad v. Greenwood, 79 Pa.St. 373; Creed v. Railroad, 86 Pa.St. 139.

OPINION

ROMBAUER, J.

This is an action by the mother of an infant, to recover for the loss of his services, resulting from injuries caused to him by the negligence of the defendant's employes. Her husband, the stepfather of the infant, is joined as a co-plaintiff.

The petition states, in substance, that on or about January 10, 1885, at De Soto, a station of the defendant's railroad, the servants and employes of the defendant in charge of an extra freight train, took and received plaintiffs' boy on said freight train for a ride down the said railroad, and while the said boy was on the said train, he was permitted by the said servants negligently to remain asleep, when a collision occurred, which said servants had reason to anticipate, and had...

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