Brill v. Eddy

• Decision Date: 08 May 1893
• Citation: 22 S.W. 488,115 Mo. 596
• Parties: BRILL v. EDDY et al.
• Court: Missouri Supreme Court

22 S.W. 488

115 Mo. 596

BRILL v. EDDY et al.

Supreme Court of Missouri, Division No. 1.

May 8, 1893.

NEGLIGENCE — RAILROAD WATCHMAN — REMOVAL OF BOY FROM MOVING CAR — QUESTION FOR JURY — WATCHMAN AS POLICE OFFICER — LIABILITY OF EMPLOYERS — EVIDENCE — HARMLESS ERROR.

1. Where a day watchman in the employ of receivers of a railroad company fails to use ordinary care in removing a boy from a moving car on which the latter is riding in violation of a city ordinance making such act a misdemeanor, the receivers are liable for any injuries to the boy caused by the negligence of such watchman.

2. In an action by the boy to recover for such injuries it appeared that the watchman had only one arm; that the boy was hanging on the ladder on the car; that when the car reached the watchman he pulled plaintiff off, when he fell, and was injured. Held, that the issue of negligence was for the jury.

3. Where such watchman did not intend to arrest plaintiff, and one of his duties was to keep boys off the cars, the fact that the mayor of the city had appointed him a policeman, and he had authority to arrest plaintiff, will not relieve defendants from liability, since at the time of the accident he was acting in the capacity of watchman.

4. Evidence that plaintiff's father failed to keep him away from the cars after being warned to do so is properly excluded, since the father's negligence is not imputable to plaintiff.

5. Where plaintiff testified that he knew it was wrong to ride on the cars, and that he had often been driven away from them, the exclusion of evidence by the father that he had told plaintiff to keep away from them is harmless error.

Appeal from circuit court, Pettis county; Richard Field, Judge.

Action by Walter J. Brill, by his next friend, George Brill, against George A. Eddy and H. C. Cross, receivers of the Missouri, Kansas & Texas Railway Company, to recover damages for personal injuries caused by defendants' negligence. From a judgment entered on the verdict of a jury in favor of plaintiff, defendants appeal. Affirmed.

Jackson & Montgomery, for appellants. W. S. Shirk and Sangree & Lamm, for respondent.

BLACK, C. J.

The plaintiff, a minor, suing by his next friend, brought this action against the defendants, who are the receivers of the Missouri, Kansas & Texas Railway Company, to recover damages for the loss of an arm. The chief complaints made in this court are: First, that there is no evidence of negligence on the part of McMahan; second, if McMahan was guilty of negligence, the defendants are not liable, because he was acting in the capacity of a police officer. The evidence bearing on the first complaint is, in substance, this: The yards of the railroad company extend from Third to Eleventh streets in the city of Sedalia. Various repair shops are located therein, and a large number of men are engaged in the shops and yards in repairing disabled cars. The main and several side or switch tracks run north and south through the yards. Broadway or Eighth street runs east and west, and crosses the yards. John McMahan was employed by defendants as day watchman at and for a long time prior to the accident, and it was his duty to keep boys out of the yards and away from the cars. While standing on Broadway, near the place where the tracks cross that street, he saw the plaintiff and three or four other boys hanging to the cars of a freight train going south. It seems the plaintiff and the other boys got on the cars at the north end of the yards. Some of the witnesses say the train was moving at the rate of 10 miles per hour, but other evidence tends to show that it was moving at a much less rate of speed. McMahan stepped forward so the train would pass close to him. All the boys except the plaintiff saw him, and at once jumped down and ran away. The plaintiff had one foot on the lower step of a ladder attached to the front end of a car, and held on by grasping the upper rounds, with his face to the car. The proof is all to the effect that he did not see McMahan, and that the latter gave the boy no warning. McMahan had but one arm. The witness Brown, who saw the whole transaction, testified: "McMahan got his arm partly around the boy, — not clear around him, but just far enough to jerk him loose. The boy fell down under the car. McMahan made a grab for him, and got him up, when he fell back. McMahan made a second attempt to get the boy, but did not get him in time to save his arm." Several other witnesses testified that McMahan jerked the boy loose as the cars passed, and that the boy fell or was knocked under the car. McMahan testified as follows: "When the boy got close to me, he let loose, and jumped off, and in doing so struck me. The force of the moving car threw him against me as he fell. I attempted to catch him, but he twisted around and fell. The axle of the wheels struck him and turned him over, and I made a second grab for him. The front wheel of the back truck ran over his arm." A city ordinance, read in evidence, made it a misdemeanor for a boy under the age of 18 years to hang to a moving car. The boy testified that he knew it was wrong to ride on the car,...