Farber v. Missouri Pac. Ry. Co.

• Decision Date: 13 November 1888
• Citation: 32 Mo.App. 378
• Parties: HENRY G. FARBER, Respondent, v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
• Court: Missouri Court of Appeals

32 Mo.App. 378

HENRY G. FARBER, Respondent, v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant.

Court of Appeals of Missouri, St. Louis.

November 13, 1888

Appeal from the St. Louis City Circuit Court. --HON. SHEPARD BARCLAY, Judge.

REVERSED AND REMANDED.

Henry G. Herbel, for the appellant.

The instruction for a non-suit should have been given: Because the evidence did not show that the act complained of was within the scope of the brakeman's authority. Marion v. Railroad, 8 A. & E. Ry. Cas. 178; Coal Co. v Herman, 86 Pa.St. 419; Eaton v. Railroad, 57 N.Y. 382; Robertson v. Railroad, 22 Barb. 91; Whitehead v. Railroad, 22 Mo.App. 63; Snyder v Railroad, 60 Mo. 419; McKeon v. Railroad, 42 Mo. 87; Jackson v. Railroad, 87 Mo. 431; DeCamp v. Railroad, 12 Ia. 348; Railroad v. Downey, 18 Ill. 260. The very appellation by which this class of servants is designated repels the implication of any such authority. Their duty, as their name imports, is to attend to the brakes. Instruction number one given by the court of its own motion is erroneous, because it authorizes the jury to determine whether defendant's brakeman was " engaged at the time in the control and running of the train" without a word of evidence on which to base such a finding. Coal Co. v. Heeman, 86 Pa.St. 419. And in the latter clause thereof assumes that the brakeman had the authority to eject plaintiff's son from the train and was under a legal obligation to exercise ordinary care in so doing.

George A. Castleman and D. Castleman Webb, for the respondent.

The only point made by the appellant is that " the evidence did not show that the act complained of was within the scope of the brakeman's duties." " Their duties, as their name imports, is to attend to the brakes. The conductor, if any person, is the agent to whom this duty is assigned, and the evidence shows that there was one such on this train." Now, freight trains do not carry passengers, and a conductor on a freight train has nothing to do with passengers. The court below instructed the jury that if the train was a freight train, " then the plaintiff's son had no right to ride thereon, with or without the consent or sufferance of the employes of the defendant in charge of the train." A conductor on a freight train would have no greater right to remove a passenger, or a trespasser, than a brakeman. If the conductor can the brakeman can. Brown v. Railroad, 66 Mo. 588; Perkins v. Railroad, 55 Mo. 212; Isabel v. Railroad, 60 Mo. 480; Hicks v. Railroad, 64 Mo. 430; Lillis v. Railroad, 64 Mo. 475. Now, there is no distinction made by our supreme court between the conductor of a train and any other employe engaged in the control and running of the train. The statute giving conductors the right to expel passengers is " if any passenger shall refuse to pay his fare, or shall behave in an offensive manner, or by repeated violation of the rules of the company, it shall be lawful for the conductor of the train and servants of the corporation to put him off," etc. Here the statute uses the general term, " " servants of the corporation." Perkins v. Railroad, 55 Mo. 214.

OPINION

ROMBAUER P. J.

This action was brought March 17, 1887, by the plaintiff to recover for the loss of service of his minor son, who was run over and seriously injured by one of defendant's freight trains June 29, 1883.

The plaintiff's case stands on the boy's testimony, who was at the date of the accident nearly sixteen years old. His version of the occurrence, so far as the facts bear upon the main question involved in the case, was substantially as follows: That he and another lad about his age, at about nine o'clock on the night of the twenty-ninth of June, 1883, got on one of defendant's freight trains which was standing in its Jefferson avenue yards in this city and about to start westward, and into what is known as a " stock car," which was loaded with lumber, through a hatchway or opening in the top thereof called a " man-hole" and secreted themselves therein for the purpose of stealing a ride to Kirkwood, Mo.; that after the train started a brakeman came along the top of the car in which they were riding, and detected them there, with their shoes off; he asked them where they were going and they told him " to Kirkwood; " he then demanded money of them and as they had none, he ordered them to get off the train; they objected to doing this because the train was moving too rapidly, but nevertheless began to do so, when the brakeman stepped on witness' fingers as he was going down the ladder at the side of the car, thereby causing him to relax his hold thereon and fall to the ground and have one of his feet crushed by the wheels of the cars; that the train was at the time moving at a rate of from eight to ten miles an hour, and neither slacked nor stopped at the station of Webster, near which the accident occurred until after he was run over, when upon his outcry the train did stop and he was picked up and taken to the next adjoining station; that he did not tell the conductor how the accident happened, nor did he complain to the company at any time prior to the institution of this suit, which as above seen was nearly four years thereafter.

Upon the close of the evidence the plaintiff asked an instruction in the nature of a demurrer to the evidence, which was refused.

The defendant gave evidence tending to show that all the brakeman did...