Chicago Great Western Ry. Co. v. Mohaupt

• Decision Date: 02 June 1908
• Docket Number: 2,709.
• Citation: 162 F. 665
• Parties: CHICAGO GREAT WESTERN RY. CO. v. MOHAUPT. [1]
• Court: U.S. Court of Appeals — Eighth Circuit

162 F. 665

CHICAGO GREAT WESTERN RY. CO. v. MOHAUPT. ^[1]

No. 2,709.

United States Court of Appeals, Eighth Circuit.

June 2, 1908

A. G Briggs and John L. Erdall, for plaintiff in error.

C. D O'Brien, R. D. O'Brien, and E. W. Williams, for defendant in error.

Before SANBORN and ADAMS, Circuit Judges, and PHILIPS, District Judge.

ADAMS Circuit Judge.

This was an action for damages instituted under the statutes of Minnesota by the personal representative of Edward Mohaupt deceased, for alleged negligence of defendant's servants and agents in the operation of one of its trains of cars. The defenses were twofold: (1) That decedent was a trespasser on the train, and that defendant was not guilty of any wanton or willful disregard of his rights; and (2) that he so exposed himself to danger as to contribute to the injury sustained by him. The decedent took one of the passenger trains of the defendant company somewhere between St. Paul and Minneapolis, to be carried to the latter place. The proof discloses that there was a tacit understanding between him and the conductor of the train that he should be carried free, and pursuant to such understanding he paid no fare for his transportation. As the train approached Minneapolis station, it collided with the rear end of another train standing at the station, and decedent was crushed and killed. For some six blocks before reaching the station, and while the train was moving at a rate of about 10 miles an hour, decedent had been riding on the rear, open or unvestibuled, platform of the smoking car, having before that time left the smoking car in which he had been riding, and which afforded ample room and safe accommodation for him, and was standing on the platform when the fatal collision occurred. No person inside the cars was seriously hurt by the collision.

At the conclusion of the testimony, the court was asked to direct a verdict for the defendant on two grounds, one because decedent was not a passenger, but a mere trespasser, and, again, because of his own contributory negligence, but refused to do so, and this action affords the basis of one of the assignments of error. The argument is made that the conductor had no authority to permit decedent to ride free on the train; that he was a trespasser in so doing, and as such could exact only a low grade of care from the defendant company, and attention is called to the cases of Condran v. Chicago, M. & St. P. Ry., 67 F. 522, 14 C.C.A. 506, 28 L.R.A. 749, and Purple v. Union Pacific R. Co., 114 F. 123, 51 C.C.A. 564, 57 L.R.A. 700, as authority for the proposition that the only duty legally imposed upon defendant in such circumstances was not to willfully or recklessly inflict injury upon him, and it is urged that the proof shows neither willfulness nor recklessness on the part of defendant company.

The court below ruled that the decedent was neither a trespasser nor a passenger, but a licensee, and that as such he was entitled to the observance of ordinary care by the defendant railway company. This conclusion is strenuously resisted by defendant's learned counsel. They claim that the proof brings the case well within the rule announced in the foregoing cases, and that the trial court erred in not applying that rule to this case. We, however, in view of the conclusion reached on the other ground urged for the peremptory instruction, do not deem it necessary to pass upon the merits of this one.

There is no substantial proof that defendant had any reasonable ground or excuse for riding on the platform of the car. The smoking car in which he had been riding before he took his position on the platform afforded him ample room and accommodation. There were but few passengers in it. So likewise, the car next to the smoking car and immediately behind the platform on which he was standing contained many vacant seats, in any one of which he could comfortably and conveniently have ridden into the station. If he had remained in the smoking car where he was, he would have been uninjured, as no one there was hurt by the collision. He was an experienced brakeman and selected the dangerous place upon the platform when other safe and convenient places were available to him. Instead of relying on the well-established rule of law and practice which require railway companies to bring their passenger trains to a...