Dorsey v. Kansas City, Pittsburg and Gulf Railway Company

• Decision Date: 01 January 1900
• Docket Number: 13,746
• Court: Louisiana Supreme Court
• Parties: MARGARET DORSEY v. KANSAS CITY, PITTSBURG AND GULF RAILWAY COMPANY

29 So. 177

104 La. 478

MARGARET DORSEY v. KANSAS CITY, PITTSBURG AND GULF RAILWAY COMPANY

No. 13,746

Supreme Court of Louisiana

January 1, 1900

APPEAL from the First Judicial District, Parish of Caddo -- Land, J.

Wise &amp Herndon and Charles W. Elam, for Plaintiff, Appellee.

Alexander & Wilkinson, for Defendant, Appellant.

OPINION

BREAUX J.

Plaintiff brought this suit to recover five thousand dollars damages for the death of her husband, who was killed while stealing a ride on defendant's train.

The record discloses that a brakeman of the defendant company threw stones or clods at plaintiff's husband, who was riding on the rods of one of the box cars, about midway of the train.

It appears that the local freight train of the defendant company, going north, was at or near Mansfield, La., running at the rate of about six or seven miles an hour, and that when the engine passed the switch target a brakeman alighted to the ground from the engine to change the switch and let the train in on the side track out of the way of a coming passenger train. As this freight train was passing by the switch, this brakeman saw Marshall Dorsey riding under the box car. It was then, while he was under the car, that he pelted him with stones or clods, hitting him twice. Dorsey then attempted to crawl from under the car, struck his head against the platform, by which he was thrown across the track and run over by several of the cars. He made no attempt to get off the train until the brakeman threw rocks or clods at him. He was, by his fall, occasioned by his endeavors to escape the rocks or clods, severely wounded, suffered great agony, and lived about eight hours after the accident.

On the part of the defense, testimony was offered of statements of the deceased that he had stolen rides for many years. Defendant denies that the death of plaintiff's husband was caused by any fault of its agents. It charged that plaintiff's husband came to his death by his own fault and negligence. Defendant also denied that the deceased was the husband of the plaintiff. The case was tried before a jury. The verdict awarded twenty-five hundred dollars to the plaintiff. The defendant prosecutes this appeal from the verdict and judgment.

Defendant in the first place, urged that Ryan, its brakeman, was not acting within the scope of his employment; that in order to recover, it was incumbent upon the plaintiff to show affirmatively that this brakeman was acting within the scope of his employment; that not only this proof was not made, but that the brakeman testified that it was not part of his duty to put trespassers off of the train, his duty being to report trespassers to the conductor for such action as this officer might deem proper.

In order to retain the full force of the defense, the defendant requested the judge of the District Court to instruct the jury, in delivering his charge, that if they found that no contractual relations existed between the deceased and the railway company, then the company was not responsible for any acts of its brakeman outside of the scope of his employment. The judge refused to give this charge, but, on the contrary, instructed the jury that the removal of trespassers from the cars, as a matter of law, is within the implied authority of the company's servants on the train, including the brakeman. Defendant complains of the charge as being erroneous.

At the outset, we find no difficulty, after having considered a number of decisions upon the subject, in arriving at the conclusion that, even though one be a trespasser on a train, he should not be expelled in such a manner as to expose his life or do him great bodily harm. This point has been considered and passed upon twice recently. While a mere trespasser is not entitled to the consideration and protection of those who are not trespassers, yet they should not be treated with unnecessary harshness and violence. No one, in the exercise of his right, is authorized to resort to unnecessary force.

This court sad, in Young vs. Texas and Pacific Railroad Company, 51 Ann. 295: "A trespasser on a railroad train must be ejected at a place not perilous for one alighting in the night time." Again, in Jackson, Tutor, vs. Railroad Company, 52 Ann. 1706: "Upon the other hand, if he was forcibly ejected by anyone for whom the defendant is responsible, he is entitled to recover, no matter why he got on the train, since there is no law authorizing the taking off of a boy's arm at the shoulder as a penalty for trespassing on railroad, or any other, property."

The jurisprudence of the courts of several other States is equally as emphatic and to the point. "A trespasser, one stealing a ride, was ruthlessly removed and injured by a brakeman. The court held that this brakeman, as such, was acting within the scope of his authority." Kansas City, Fort Scott and G. R. R. Co. vs. Kelley, 14 Pacific Reporter, 172. And held further "that while the defendant had a right to remove the trespasser, but in so doing must exercise the right with ordinary care and prudence on its part -- the mere fact that one is a trespasser was not such negligence as to relieve the defendant from this obligation."

This brings us to a consideration of the question directly placed at issue by the refusal of our brother of the District Court to charge that the removal of...