Farber v. Missouri Pac. Ry. Co.

• Decision Date: 25 May 1897
• Citation: 139 Mo. 272,40 S.W. 932
• Parties: FARBER v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

40 S.W. 932

139 Mo. 272

FARBER v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri, Division No. 2.

May 25, 1897.

RAILROADS — EJECTION OF TRESPASSER BY BRAKEMAN — SCOPE OF EMPLOYMENT — EVIDENCE — INSTRUCTIONS.

1. In an action for ejection of plaintiff's son, a trespasser, by a brakeman acting within the scope of his employment, an instruction that if "said employé forced plaintiff's son to comply with such order by stepping on his fingers on the ladder whereon plaintiff's son was then standing, and that in so doing said employé failed to exercise ordinary care to put off said son of plaintiff in a place and manner safe to life and limb (regard being had to all the facts and circumstances shown by the evidence)," the verdict should be for plaintiff, — authorizes a finding for plaintiff if the brakeman negligently ordered the son to leave the train while in motion, and he was injured while obeying the order, though the brakeman may not have stepped on his fingers to force him off.

2. A conductor was permitted without objection to testify that after an accident to plaintiff's son, a trespasser, he stopped the train, and took the boy into the caboose, and that on being asked how he came to be injured the boy answered that the brakeman put him off, and in trying to get on he got hurt. Held that, though incompetent as against plaintiff, the evidence would support an instruction that, if the boy was injured while attempting to board the train, there could be no recovery.

3. Where a brakeman, acting within the scope of his authority, negligently ordered a trespasser to alight from a moving train, and the trespasser was injured while obeying the order, the company is liable, though no actual force was used.

4. Where the brakeman who ejected plaintiff, a trespasser, and other brakemen testified that it was the brakeman's duty to put trespassers off, it was error to leave it to the jury whether such ejection was a part of the duty of the brakeman.

Appeal from St. Louis circuit court; James W. Withrow, Judge.

Action by Henry G. Farber against the Missouri Pacific Railway Company. From an order granting a new trial after a verdict in favor of defendant, defendant appeals. Affirmed.

Martin L. Clardy, H. S. Priest, and H. G. Herbel, for appellant. Geo. A. Castleman and Ben. T. Castleman, for respondent.

GANTT, P. J.

This is an appeal from an order granting a new trial from a verdict in favor of defendant. The order sustaining plaintiff's motion for a new trial is as follows: "The court, having fully considered the motion for a new trial, * * * doth sustain the same on the grounds that there was error in the instructions given to the jury," and "doth order the judgment set aside." This is an action by the father for injuries received by his son, who he alleges was wrongfully expelled from one of defendant's freight trains. Save in one material respect, the facts are the same as were developed on the son's case against the defendant in 116 Mo. 81, 22 S. W. 631. In this case plaintiff introduced evidence tending to prove that the brakeman was authorized to expel trespassers from the train, — evidence which was entirely omitted from the son's case. The facts may be summarized as follows: William Farber, a son of plaintiff, 16 years old, and a companion, without the knowledge of defendant or its employés, climbed upon one of its freight train at St. Louis, bound west from said city. They crawled into an open hatch in the top of a car loaded with lumber, and laid themselves down to rest. The testimony of the boy William is to the effect: That his purpose was to steal a ride to Kirkwood, some 12 or 15 miles distant. That when the train was approaching Webster, a station several miles west of St. Louis, a brakeman who was walking over the train put his lantern into the manhole and discovered him and his companion lying on top of the lumber in the car. That he ordered them to get out on top of the car, and, after they had done so, asked them whether `they had any "stuff," and, receiving a negative answer, asked them if they had a knife, pistol, razor, or anything of that kind, or tobacco. They told him "No." He then ordered them off the train, which order they refused to obey, because the train was running too rapidly. That he then forced the plaintiff's son down the ladder, and kept treading on his fingers as he went down, until he had reached the last rung, when the pressure of the brakeman's shoe became so great that he relinquished his hold upon the ladder, and fell to the ground, striking a tie, which threw his foot under the wheels, which passed over his foot, mashing it and a couple of his toes, which had to be amputated. The injured boy was the only witness who testified in plaintiff's behalf concerning the manner of the injury; the absence of his companion, Dillon, not being accounted for. The brakeman's version of the accident was that, while passing over the train, he saw a manhole open, and lowered his lantern into it, and saw the boys hiding there. He told them to get out, and then asked them where they were going. They replied "to Kansas City." He then told them that they (the train crew) were not allowed to carry passengers on freight trains, and that they would have to get off; that they then started towards the ladders, and he went on ahead to the engine, paying no further attention to the boys; that he did not hear of the injury to plaintiff's son until the train arrived at Kirkwood, Mo., the next station, when he was told thereof by his associates. He denied forcing plaintiff's son off the train. Edward Mahoney, who was a brakeman on defendant's freight train at the time plaintiff's son was put off, testified as to a brakeman's duties as follows: "Q. State them as shortly as you can. A. His business is to couple and uncouple cars, to open and close switches, to see that his train before leaving here is attached, to see that his red lights and lantern are cleaned, and several more things it would take a long time to explain. The Court: Go on and give the whole details. The Witness: Also to see that no tramps, stragglers, or people that had no business there get on the cars as they pass through or stop. Q. A little louder. A. His duties are to prevent tramps, stragglers, or people who have no business there from getting on those trains which he is on duty in actual service between here and his destination. Q. Has he any duty with regard to trespassers whom he finds on the trains? A. He has. Q. Do you know what those duties were? A. In case that he finds any of those people on the train, he has to put them off of the train."

The instructions given the jury are as follows: Plaintiff's instructions given: (1) "If you find from the evidence that the son of plaintiff, on June 29, 1883, was on the train of defendant as a trespasser, and that an employé of the defendant, engaged at the time in the control and running of the train, and in the course of his employment, ordered plaintiff's son to get off the train, in the dark, and while it was in such rapid motion that it was unsafe and dangerous to get off the train so moving, and that thereupon said employé forced plaintiff's son to comply with such order by stepping on his fingers on the ladder whereon the plaintiff's son was then standing, and that in so doing said employé failed to exercise ordinary care to put off said son of plaintiff in a place and a manner safe to life and limb (regard being had to all the facts and circumstances shown by the evidence), then your verdict should be for the plaintiff." (2) "If the jury find for the plaintiff, they will assess his damages at such sum as will be a reasonable compensation for the expenses incurred by the plaintiff in medicines and medical attention to his said son by reason of said injury, and for the loss of the services of said son during such time between the date of the injury and the majority of the son, as he was deprived of said services by reason of said injury. If, on the other hand, you find for the defendant, your verdict need merely so state in those words." (3) "What constitutes `ordinary care' as mentioned in these instructions depends on the facts of each particular case. It is such as a person of ordinary prudence would exercise (according to the usual and general experience of mankind) in the same situation and circumstances as those of the person or persons in this case, with reference to whom the term `ordinary care' is used in these instructions." The court, of its own motion, gave the following: (1) "The burden of proof is on the plaintiff...