Aerheart v. St. Louis, I.M. & S. Ry. Co.

• Citation: 99 F. 907
• Decision Date: 19 February 1900
• Docket Number: 1,178.
• Parties: AERHEART v. ST. LOUIS, I.M. & S. RY. CO.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

99 F. 907

AERHEART v. ST. LOUIS, I.M. & S. RY. CO.

No. 1,178.

United States Court of Appeals, Eighth Circuit.

February 19, 1900

Sterling P. Bond, for plaintiff in error.

Henry G. Herbel (Martin L. Clardy, on the brief), for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

THAYER Circuit Judge.

This case comes on a writ of error from the circuit court of the United States for the Eastern district of Missouri, in which court Loney Aerheart, the plaintiff in error, by his next friend, brought an action against the St. Louis, Iron Mountain & Southern Railway Company, the defendant in error charging, in substance, that one of its employes unlawfully assaulted him with a revolver, and threatened to shoot him as he was attempting to steal a ride on one of the freight trains of the defendant company, and that by reason of such unlawful assault the plaintiff, who was about 16 years old was greatly frightened, and took refuge under said freight train, where his foot was caught and crushed in such a manner that it had to be amputated. The plaintiff's own testimony, as given at the trial did not conform in some respects to the allegations of his complaint, but tended to show substantially the following facts: That while one of the defendant's trains was lying at a station the plaintiff crept up a ladder on the side of one of the cars, intending to secure a place to ride on the top of the train; that, as his head appeared above the roof of the car, one of the defendant's brakemen moved towards him with a revolver in his hand, and threatened to shoot; that out of sheer fright the plaintiff fell from the ladder between the cars; and that one of his feet was run over by a wheel of the car, and crushed. The trial court, however, in its charge ignored the variance between the proof and the pleadings, and instructed the jury, in substance, that, if they credited the boy's statement as to the manner in which the injuries complained of were sustained, they should render a verdict in his favor. It further instructed the jury, in substance, that, while persons who attempt to steal rides on railroad trains may be put off from the same by the exercise of sufficient force yet that a railroad company cannot in such cases use unreasonable force, or act in such a way as will necessarily occasion bodily injury to one who is thus ejected from a train.

The testimony offered by the defendant was to the following effect: That the plaintiff was injured by attempting to go underneath a freight car with a view of stealing a ride, and concealing himself from the persons in charge of the train, while the train was moving slowly along a siding waiting for the passage of another train; that a few moments before the accident occurred, as the plaintiff and some other boys were running along the side of the train with the evident purpose of boarding it and stealing a ride, they were warned by one of the brakemen to desist from such efforts; that no pistol was drawn on the occasion in question, or threats made to use one, if they persisted in their efforts to board the train; and that immediately after the accident the plaintiff himself admitted to several persons that he had attempted to run under the train while it was in motion, and that the injuries which he had sustained were due to his own fault. The jury found in favor of the defendant, believing, no doubt, that the defendant's witnesses had described the circumstances under which the injuries were sustained with substantial accuracy.

The record, as presented to this court, fails to disclose any error in the proceedings of the trial court. The plaintiff was allowed to submit his case to the jury on the facts which he testified to at the trial, although they differed in some material respects from the facts stated in his complaint, and the jury were instructed to find in his favor on the case made by his own evidence, if they believed his statements to be true. It is obvious, we think, that the plaintiff ought not to complain of such action, since it afforded him an opportunity to have his rights determined by the jury on the case as he made it on the witness stand, and under instructions from the court which were as favorable as he could either expect or desire.

The only incident of the trial which affords any reasonable ground for complaint is the action of the trial court in giving a supplementary instruction to the jury in the absence of counsel for the respective parties. This action forms the basis for one of the assignments of error. The bill of exceptions recites, in substance, that after the jury had had the case under consideration for some...