Farber v. The Missouri Pacific Railway Company
| Citation | 22 S.W. 631,116 Mo. 81 |
| Parties | Farber, Appellant, v. The Missouri Pacific Railway Company |
| Decision Date | 16 May 1893 |
| Court | United States State Supreme Court of Missouri |
Appeal from St. Louis City Circuit Court. -- Hon. L. B. Valliant Judge.
Affirmed.
George A. Castleman and D. C. Webb for appellant.
(1) It mattered not what the relation existing between plaintiff and defendant, this willful and malicious trespass created a liability of defendant to respond for the injuries so inflicted. Barker v. Railroad, 98 Mo. 53; Hallihan v. Railroad, 71 Mo. 118. Under evidence sustaining such allegations, even a trespasser may recover. Adams v. Railroad, 74 Mo. 555; Travers v Railroad, 63 Mo. 424; Perkins v. Railroad, 56 Mo. 212; 2 Shearman and Redfield on Negligence, sec. 483. As a common carrier the duties of defendant to a passenger are created by law, and do not rest upon the "consent" of the carrier. (2) The acts of the employee of a corporation "in the course of his employment" are the acts of the corporation itself. Perkins v. Railroad, 55 Mo.; Goddard v. Railroad, 10 American Law Register, 19; Craker v. Railroad, 36 Wis. 657. The doctrine that this court will not take judicial notice of the duties or degrees of superiority among railroad employees, laid down in McGowan v. Railroad, 61 Mo. 532, seems to have been overruled in Travers v. Railroad, 63 Mo. 423. (3) This court will take judicial notice of what everybody knows from "common information." Second appeal of Rine v Railroad, S.Ct. Mo.; Leicy v. Harlin, 135 U.S. 123. Among other things, is the fact that a brakeman is authorized to expel one improperly on a train. Kansas City v. Railroad, 36 Kan. 657. If the passenger fails to pay his fare, the conductor and "other servants" of the railway are authorized to put him off, and the how and where are prescribed by law. Revised Statutes, 1889, sec. 2581; Perkins v. Railroad, 55 Mo. 211. And this, notwithstanding the ruling of this court in Lillis v. Railroad, 64 Mo. 475. (4) But if the court cannot draw upon the great store-house of "what everybody knows," common information for the presumption as to the brakeman's duties, it was error for the circuit court to exclude evidence competent to supply this deficiency. (5) The defendant's road is a "public highway." As such it was open to the use of plaintiff. Constitution of Mo., art. 12, sec. 14; Revised Statutes, 1889, secs. 2630, 2631. As such it is open to the use of every citizen, and he is not a trespasser in going thereon, unless so declared by statute, as in Revised Statutes, 1889, sec. 2611; Angell on Highways, sec. 18. That section is the only one familiar to us in our laws declaring under what circumstances the citizen becomes a trespasser by the use of a railroad, and this case is not covered by it.
H. S. Priest and H. G. Herbel for respondent.
(1) The court did not err in sustaining the demurrer to plaintiff's case, as plaintiff was a trespasser on defendant's train and no evidence was adduced to prove that the brakeman who is alleged to have ejected him from the train had any authority to do so. Hyde v. Railroad, 19 S.W. 483; Farber v. Railroad, 32. Mo.App. 381; Bess v. Railroad, 14 S.E. 234; Stringer v. Railroad, 96 Mo. 300; Snyder v. Railroad, 60 Mo. 419; McKeon v. Railroad, 42 Mo. 83; Railroad v. Anderson, 17 S.W. 1039; Jones v. Railroad, 43 Mo.App. 413; Wilburn v. Railroad, 36 Mo.App. 207; Marion v. Railroad, 59 Iowa 428; S. C. 8 Am. & Eng. R'y Cases 178; Coal Co. v. Heeman, 86 Pa. St. 419; Eaton v. Railroad, 57 N.Y. 382; Robertson v. Railroad, 22 Barb. 91; Williams v. Car Co., 33 Am. & Eng. R'y Cases 409; Railroad v. Dean, 92 Ind. 459; S. C. 18 Am. & Eng. R'y Cases 190. (2) There was no error in the exclusion of evidence. Greenleaf on Evidence [13 Ed.], sec. 82; Powers v. Railroad, 26 N.E. 446; Rutledge v. Railroad, 19 S.W. 38; Reagan v. Railroad, 93 Mo. 352; Alcorn v. Railroad, 18 S.W. 188; Gordy v. Railroad, 23 A. 607; Russell v. Railroad, 47 F. 205.
This action was commenced on the thirteenth day of September, 1888, for a personal injury alleged to have been caused by the negligence of defendant June 29, 1883. To avoid the plea of the statute of limitations, it is averred that the plaintiff was a minor when he was hurt and up to the twenty-second day of August, 1888.
The following averment states the pith and substance of plaintiff's cause of action:
"Plaintiff states that on the twenty-ninth day of June, 1883, he was riding on the cars of defendant, propelled and drawn by a locomotive of defendant on the said road of defendant, and that the defendant, not regarding its duty in that behalf, did not use due care in causing the plaintiff to be conveyed over their said road, and conducted itself so carelessly and improperly in that behalf by reason of the careless default and improper conduct of the defendant by its agents, servants and employees, in the course of their employment, in the conveyance of plaintiff, that he, the plaintiff, in the night time, while the cars were moving rapidly through the county of St. Louis, at a point between the town of Webster and the town of Kirkwood, was violently and maliciously pushed, dragged and expelled from the cars by the employees and agents of defendant and by them as aforesaid, cast on the ground, and plaintiff fell so that his right foot was in front of the wheels of the cars of defendant on which plaintiff had been riding, and said defendant ran said car over and against the foot of said plaintiff, cutting off three toes and a portion of the other toes, and a part of the bottom of the foot of plaintiff, thereby greatly bruising, lacerating, hurting and wounding said plaintiff, and whereby and by reason of the improper conduct aforesaid he became sick, sore, lame and permanently crippled etc.," to his damage in the sum of $ 10,000.
The answer was a general denial and contributory negligence. The circuit court sustained the demurrer to the evidence. The plaintiff assigns as errors the sustaining of the demurrer, and the exclusion of certain evidence which he offered.
With the exception of plaintiff's father and Dr. Ford, whose evidence related only to the nature and extent of the injuries, the plaintiff's own testimony is all the evidence in the case, and as the question is raised as to its sufficiency to justify the court in sending the cause to the jury, it is deemed best to incorporate it substantially in full.
Plaintiff testified that at the time of the accident he was at work for his father in a meat market. That his father was a butcher; that he, the plaintiff, was sixteen years old; that on the twenty-ninth day of June, 1883, he and another boy, named Dillon, got on a freight train of the Missouri Pacific Railway going to Kirkwood. It was about nine o'clock at night. The two boys intended to go to Kirkwood. They got on a stock car loaded with lumber. The car had slides and a manhole in the top of the car, and they got in the car through this hole.
"We got into the car in a space of six or eight feet in the end of the car and sat there. We rode some ways, and we came close to Webster, and the brakeman came along, and dropped his light down there and saw us sitting there and he says: 'Where are you going?' We said, 'To Kirkwood.' He says 'come out of there,' and we came out on top of the car, and he says, 'have you got any stuff?' And I says, 'Not a cent.' He says, 'Have you got any tobacco?' And I says, 'No.' He says, 'Have you got any pistol or a knife, or anything of that kind?' And I says, 'No, sir.' Then he says, 'Walk!' I told him we would get off when the train stopped, and he says, 'The train ain't going to stop, and you get right off here.' About this time we were passing the depot at Webster, and my partner and I were afraid to get off. The train was running between eight and ten miles an hour and I walked over the ladder, and the brakeman says, 'Now get down,' and I got down on the ladder, and I says, 'If the train stops I will get off,' and he says, 'No you get off anyhow.' I told my partner we had better get off, and he went to the next car to get down on the ladder too. Than the brakeman came to my ladder and stepped on my fingers with his boots, and told me to get off. I had one hand holding on the car, and he says, 'Now get off.' I was afraid to get off, I was afraid I would fall in the culvert, and I said, 'Wait until the train slacks up,' and he says, 'No you get off,' and he stepped on my fingers again with his big shoes, and I could not stand that and I had to let go and I fell alongside of the track where there was a tie stuck out just at the end of the walk, and my foot got under the wheel of the car, and I hallooed that I was hurt. They stopped the train, and came back, and got me, and took me to Kirkwood."
The plaintiff then testified that the train ran over his small toe, and across his foot just below the instep. It peeled off all the flesh of the foot and left nothing but the skin. The plaintiff said that he would be twenty-three on the twenty-second of August, 1890.
Plaintiff having testified that a brakeman ejected him from the train, was asked this question by his attorney:
"Now tell the jury what the duties of a brakeman on a freight train are?
By Mr. Herbel, attorney for the defendant: I object to that if the court please.
By the Court: I think the objection well taken.
Q. By Mr. Webb: You know what the duties of a brakeman on a freight train are? A. Yes, I think I know.
By Mr. Herbel: Wait a minute. We want to know your source of knowledge, what your experience has been. A. I was told by either the brakeman or the fireman.
By Mr. Herbel: I object to his stating that, as incompetent.
Q. By Mr. Webb: Are you acquainted with many employees of railroad...
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