Chicago, M. & St. P. Ry. Co. v. Harrelson

• Decision Date: 25 September 1926
• Docket Number: No. 7243.,7243.
• Citation: 14 F.2d 893
• Parties: CHICAGO, M. & ST. P. RY. CO. v. HARRELSON.
• Court: U.S. Court of Appeals — Eighth Circuit

14 F.2d 893 (1926)

CHICAGO, M. & ST. P. RY. CO. v. HARRELSON.

No. 7243.

Circuit Court of Appeals, Eighth Circuit.

September 25, 1926.

Howard L. Hassler, of Kansas City, Mo. (C. R. Sutherland, of Chicago, Ill., and E. R. Morrison and Morrison, Nugent, Wylder & Berger, all of Kansas City, Mo., on the brief), for plaintiff in error.

John G. Madden, of Kansas City, Mo. (T. J. Madden, Harry R. Freeman, and Madden, Freeman & Madden, all of Kansas City, Mo., on the brief), for defendant in error.

Before KENYON and VAN VALKENBURGH, Circuit Judges, and JOHN B. SANBORN, District Judge.

KENYON, Circuit Judge.

Plaintiff in error (for convenience designated in this opinion as defendant) is a common carrier of passengers and freight.

William Brooks Harrelson, a minor, who was between 9 and 10 years of age at the time of the occurrence in question, is defendant in error (but will be designated as plaintiff, the case being brought against the Chicago, Milwaukee & St. Paul Railway Company by his father, Howard M. Harrelson, as his next friend).

August 1, 1922, plaintiff was a passenger on a train of defendant, en route from Des Moines, Iowa, to Spirit Lake, Iowa. He was in the company of his mother, his cousin, Dr. N. O. Harrelson, and the latter's wife and minor child. There is no question raised in this case as to the status of plaintiff as a passenger. At some time during the passage before the town of Yale was reached, W. L. Finicum, defendant's conductor in charge of the train, talked with the plaintiff and his mother. As a result thereof the boy went with him from the day coach, where they were sitting, into the smoking car. Shortly thereafter the train arrived at Yale. The conductor went to the depot platform, and the boy followed him. There is much discrepancy in the evidence as to the circumstances surrounding the leaving of the train by plaintiff and the attempted return thereto, the plaintiff testifying that the conductor had told him about the place where four engines came in at the same time from different directions, and that it was at the next stop; that the conductor told him, when they were on the station platform at Yale and he inquired about the four engines, "They are at the next station, we must get back on the train." In any event, the conductor got upon the train, and the boy, in attempting to get upon the steps of the day coach, in some way missed his footing and went under the car, the rear truck passing over him and cutting off one of his legs between the ankle and the knee. At the close of the evidence a demurrer thereto was interposed by defendant, which would accomplish the same purpose as a motion to instruct a verdict. This was overruled by the court. The case was submitted to the jury, and a verdict was returned for plaintiff for $20,000. Defendant brings the case here by writ of error.

Three points are raised and argued:

First. Alleged error of the court in refusing to give the instruction requested by defendant in the nature of a demurrer to all the evidence at the close of the testimony.

Second. Error in giving to the jury two written instructions, hereafter set forth, requested by plaintiff.

Third. Error in permitting plaintiff's counsel to read for the purpose of impeaching witness, Finicum, an entire deposition of said witness taken some time previous.

We take these up in their order. Plaintiff's case was based on defendant's alleged negligence in two particulars: (a) That the conductor of defendant's train caused or permitted plaintiff to leave the train at the town of Yale; and (b) caused or permitted the train to start at said town when he knew or by the exercise of the proper degree of care should have known that plaintiff was not upon the train, and that he intended and would attempt to re-enter it. There is no claim or suggestion of contributory negligence.

The court would not have been justified in giving the requested instruction, which of course amounted to the direction of a verdict for the defendant, if, as a matter of law, there was sufficient evidence to submit to the jury either of the negligence charges.

As to the alleged negligence of the conductor in causing or permitting plaintiff to leave the train at a point other than his destination, it is the theory of defendant that the injury to plaintiff resulted from the attempt of the conductor to do an act outside the scope of his employment, viz. to entertain the boy.

This boy occupied the status of a passenger. The railroad owed to him the highest practical degree of care upon the part of its employees in carrying out the contract of carriage to transport him to his destination, and his age must be taken into consideration in the measurement of such care. New Jersey Steam-Boat Co. v. Brockett, 121 U. S. 637, 7 S. Ct. 1039, 30 L. Ed. 1049; Warner v. Baltimore & Ohio R. R. Co., 168 U. S. 339, 18 S. Ct. 68, 42 L. Ed. 491; Delaware, L. & W. R. Co. v. Price, 221 F. 848, 137 C. C. A. 406; Trapnell v. Hines, Director General of Railroads (C. C. A.) 268 F. 504; Laub v. Chicago, B. & Q. Ry. Co., 118 Mo. App. 488, 94 S. W. 550; Dore v. Omaha & C. B. St. R. Co., 97 Neb. 250, 149 N. W. 792.

The question of whether the highest practical degree of care was exercised under the circumstances, if one upon which reasonable men may differ under the evidence, is for the jury. Grand Trunk Railway Co. v. Ives, 144 U. S. 408, 12 S. Ct. 679, 36 L. Ed. 485; Baltimore & Ohio R. R. Co. v. Griffith, 159 U. S. 603, 611, 16 S. Ct. 105, 40 L. Ed. 274; Warner v. Baltimore & Ohio R. R. Co., 168 U. S. 339, 18 S. Ct. 68, 42 L. Ed. 491.

Plaintiff's testimony is to the effect that he got off at Yale because of the promise of the conductor to show him at the next stop the four engines arriving there from different points of the compass. While the conductor may have been engaged in trying to entertain the boy and may have done things outside the scope of his duty in acting as entertainer, as urged by defendant, yet when his entertainment, if it may be so styled, of the child commenced, it did not terminate the relationship of carrier and passenger. The duty to exercise the highest practical degree of care in the transportation of the boy as a passenger remained, whether he was being entertained or not.

If the conductor's evidence is true, he left plaintiff on the train in the smoker when he got off at Yale, after telling him that Herndon was the place where he would see the four engines, and admonishing him to stay where he was until his return, and never saw him again until after he was hurt. There is presented therefore a sharp dispute as to the facts. It is not for us to determine whose testimony is to be believed. That was for the jury, and we think as to this charge of defendant's negligence the question of whether the conductor had exercised that degree of care which the law exacts of a carrier in the transportation of an infant passenger was clearly for the jury.

As to the ground of alleged negligence of the conductor while on the station platform, the same situation presents itself as to the evidence. Defendant's brief correctly states the proposition as follows: "The question simmers down to the one point — whether the conductor knew or should have known that plaintiff was upon the platform near the train and intended to and would attempt to re-enter it."

The jury were warranted, if they believed plaintiff's evidence, in finding that plaintiff followed the conductor to the platform; that while on the platform he asked the conductor about the four engines, the conductor replying, "They are at the next station, we must get back on the train"; that the conductor as the train started stepped upon the car step of the forward coach, blocking plaintiff's entrance thereto, and the plaintiff, in an attempt to get on the rear coach, fell thereunder and was seriously injured.

On the other hand, if the jury believed the conductor, they could well find that he left the boy in the seat of the smoker, and that he did not see him again until after his injury. It is rather remarkable and difficult of belief that a conductor, who had been 40 years in the service with the humane instincts of men in this line of work, should leave the 9-year old boy on the station platform, pay no attention to him, get upon the train and block the passage of the boy onto the steps of the car; yet this was a question of fact for the jury to pass on.

The boy had not lost his status as a passenger by alighting from the car at this station under the circumstances narrated by him, and the duty remained upon the part of the carrier to exercise the highest degree of practical care toward him. Parsons v. New York Central & H. R. R. Co., 113 N. Y. 355, 21 N. E. 145, 3 L. R. A. 683, 10 Am. St. Rep. 450; Gannon v. Chicago, R. I. & P. Ry. Co., 141 Iowa, 37, 117 N. W. 966.

From the facts presented on both grounds of negligence, it certainly cannot be inferred that all reasonable men would of necessity draw the same conclusion with reference thereto. There was evidence to support the charge of negligence as to the conductor while on the train and also while on the station platform. The court did not err in refusing to instruct a verdict for defendant.

Defendant urges error in two instructions which were requested by plaintiff and given by the court. The first is as follows:

"The court instructs...