Farber v. Missouri Pac. Ry. Co.

• Decision Date: 16 May 1893
• Citation: 22 S.W. 631,116 Mo. 81
• Parties: FARBER v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

22 S.W. 631

116 Mo. 81

FARBER v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri, Division No. 2.

May 16, 1893.

RAILROADS AS HIGHWAYS — EJECTMENT OF TRESPASSER FROM FREIGHT CAR — DUTY OF BRAKEMAN — EVIDENCE.

1. The declaration of Const. 1875, art. 12, § 14, that railways within the state are public highways, does not authorize one to ride on a train without payment of fare, and in defiance of the regulations of the company.

2. Any liability of a railroad company for the act of its brakeman in forcing from a freight train one who had got on to steal a ride is not founded on the law of carriers, but on that of agency.

3. It cannot be assumed, in the absence of proof, that a brakeman on a freight train has been authorized to remove trespassers.

4. It is not competent to prove the duties of a brakeman by the testimony of one who has only been round trains a few times, when the brakemen had been attending to their business, and who testified that he had no other knowledge of their duties than what he had observed, and what he had been told by railroad men that they were supposed to be.

Appeal from St. Louis circuit court; Le Roy B. Valliant, Judge.

Action by William Farber against the Missouri Pacific Railway Company for personal injuries. Judgment for defendant. Plaintiff appeals. Affirmed.

George A. Castleman and D. Castleman Webb, for appellant. H. S. Priest and H. G. Herbel, for respondent.

GANTT, P. J.

This action was commenced on the 13th day of September, 1888, for a personal injury alleged to have been caused by the negligence of defendant, June 29, 1883. To avoid the plea of the statute of limitations, it is averred that the plaintiff was a minor when he was hurt, and up to the 22d day of August, 1888. The following averment states the pith and substance of plaintiff's cause of action: "Plaintiff states that on the 29th day of June, 1883, he was riding on the cars of defendant, propelled and drawn by a locomotive of defendant on the said road of defendant, and that the defendant, not regarding its duty in that behalf, did not use due care in causing the plaintiff to be conveyed over its said road, and conducted itself so carelessly and improperly in that behalf, by reason of the careless default and improper conduct of the defendant, by its agents, servants, and employes in the course of their employment, in the conveyance of plaintiff, that he (the plaintiff) in the nighttime, while the cars were moving rapidly through the county of St. Louis, at a point between the town of Webster and the town of Kirkwood, was violently and maliciously pushed, dragged, and expelled from the cars by the employes and agents of defendant, and by them, as aforesaid, cast on the ground, and plaintiff fell so that his right foot was in front of the wheels of the car of defendant on which plaintiff had been riding, and said defendant ran said car over and against the foot of said plaintiff, cutting off three toes, and a portion of the other toes, and a part of the bottom of the foot of plaintiff, thereby greatly bruising, lacerating, hurting, and wounding said plaintiff, and whereby, and by reason of the improper conduct aforesaid, he became sick, sore, lame, and permanently crippled," etc., to his damage in the sum of $10,000. The answer was a general denial and contributory negligence. The circuit sustained the demurrer to the evidence. The plaintiff assigns as errors the sustaining of the demurrer, and the exclusion of certain evidence which he offered.

With the exception of plaintiff's father and Dr. Ford, whose evidence related only to the nature and extent of the injuries, the plaintiff's own testimony is all the evidence in the case; and, as the question is raised as to its sufficiency to justify the court in sending the cause to the jury, it is deemed best to incorporate it substantially in full. Plaintiff testified that at the time of the accident he was at work for his father in a meat market. That his father was a butcher. That he (the plaintiff) was 16 years old. That on the 29th day of June, 1883, he and another boy, named Dillon, got on a freight train of the Missouri Pacific Railway going to Kirkwood. It was about 9 o'clock at night. The two boys intended to go to Kirkwood. They got on a stock car loaded with lumber. The car had slides and a manhole in the top of the car, and they got in the car through this hole. "We got into the car in a space of six or eight feet in the end of the car, and sat there. We rode some ways, and we came close to Webster, and the brakeman came along, and dropped his light down there, and saw us sitting there, and he says, `Where are you going?' We said, `To Kirkwood.' He says, `Come out of there,' and we came out on top of the car, and he says, `Have you got any stuff?' and I says, `Not a cent.' He says, `Have you got any tobacco?' and I says, `No.' He says, `Have you got any pistol or a knife, or anything of that kind?' and I says, `No, sir.' Then he says, `Walk!' I told him we would get off when the train stopped, and he says, `The train ain't going to stop, and you get right off here.' About this time we were passing the depot at Webster, and my partner and I were afraid to get off. The train was running between eight and ten miles an hour, and I walked over the ladder, and the brakeman says. `Now, get down,' and I got down on the ladder; and I says, `If the train stops, I will get off,' and he says, `No; you get off anyhow.' I told my partner we had better get off, and he went to the next car to get down on the ladder, too. Then the brakeman came to my ladder, and stepped on my fingers with his boots, and told me to get off. I had one hand holding on the car, and he says, `Now, get off.' I was afraid to get off; I was afraid I would fall in the culvert; and I said, `Wait until the train slacks up,' and he says, `No; you get off;' and he stepped on my fingers again with his big shoes, and I could not stand that, and I had to let go, and I fell alongside of the track where there was a tie stuck out, just at the end of the walk, and my foot got under the wheel of the car, and I hallooed that I was hurt. They stopped the train, and came back and got me, and took me to Kirkwood." The plaintiff then testified that the train ran over his small toe, and across his foot just below the instep. It peeled off all the flesh of the foot, and left nothing but the skin. The plaintiff said that he would be 23 on the 22d of August, 1890. Plaintiff, having testified that a brakeman ejected him from the train, was asked this question by his attorney: "Now, tell the jury what the duties of a brakeman on a freight train are. By Mr. Herbel, attorney for defendant: I object to that, if the court please. By the Court: I think the objection well taken. Question by Mr. Webb: You know what the duties of brakeman on a freight train are? Answer. Yes; I think I know. By Mr. Herbel: Wait a minute. We want to know your source of knowledge, — what your experience has been. A. I was told by either the brakeman or the fireman. By Mr. Herbel: I object to his stating that, as incompetent. Q. By Mr. Webb: Are you acquainted with many employes of railroad companies? A. Yes; I know several of them. Q. Of the Missouri Pacific Railroad Company especially? A. I know employes of the Missouri Pacific; yes, sir. Q. Have you seen any of the workings of the employes, — what they do, and what their business is? A. Yes; I have seen them often enough. If you go around the railroad, you can see them at any time at the levee, and at any place you can see them. Q. You know what their general duties are? A. Yes, sir. Q. Both at the levee and at the depot, and on the trains? A. Yes, sir. Q. Now, state what are the duties of a brakeman. By Mr. Herbel: I object to that as incompetent. By the Court: Objection sustained. (To which action of the court the plaintiff then and there duly excepted at the time.) Q. by Mr. Webb: Have you any other means of knowing what the duties of brakemen are? A. Only what I have been told, and what I have seen. Q. What experience have you had besides seeing them about here? A. I have had no experience, only what I have seen, and what I have heard from other people. Q. Who have you heard from? A. I have been told so by different railroad men about these duties, — what they are supposed to be. Q. Have you been on trains when they were working and attending to their business? A. Yes, sir. Q. How often? A. Not very often; a couple of times, I suppose. Q. Have you had any conversation with these railroad men while they were engrossed in business, — while they were attending to their duties? A. Yes; I spoke to several brakemen several times when they were working, and very often I would go to the train in the yard, and get on and ride to Grand avenue. Q. Have you often gone from the yards on the train out to Grand avenue? A. Yes, sir. Q. And you have associated with these men? A. Not associated with them; no, sir. I cannot exactly say that. Q. Have you been riding on the trains with them? A. Yes, sir. Q. Now state what you have noticed them doing. (Objected to. Objection sustained; to which action of the court the plaintiff then and there duly excepted at the time.) Q. While riding on the trains with these men, and conversing with them, I will ask you if you have noticed their habits and their actions while engaged in business? A. Yes, sir. I have seen them put other people off. By Mr. Herbel: I object to that. By Mr. Webb: He was asked how he had any knowledge of the rules of the railroad company. I want to know how he knew that. It is brought out by the question of Mr. Herbel, that he knew he would be removed by the brakeman, or other employe, if he did not get off the car. By the Court: He may answer how he knows A. When I was going to school I was around the railroad yards, and saw it every day, — that the brakemen put men off. They put boys off, and men, too, who jumped on the train. I...