Fink v. Kansas City Southern Railway Company

• Decision Date: 05 February 1912
• Citation: 143 S.W. 568,161 Mo.App. 314
• Parties: CLARENCE FINK, by Next Friend, Respondent, v. KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant
• Court: Missouri Court of Appeals

143 S.W. 568

161 Mo.App. 314

CLARENCE FINK, by Next Friend, Respondent, v. KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Springfield

February 5, 1912

Appeal from Jasper Circuit Court.--Hon. David E. Blair, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Cyrus Crane, J. W. McAntire and O. L. Cravens for appellant.

(1) The demurrer to the evidence should have been sustained because considering plaintiff's knowledge and capacity it conclusively appears he knew the danger of his act in voluntarily hopping the car and how to avoid it, and he was therefore guilty of contributory negligence as a matter of law. Graney v. Railroad, 157 Mo. 666; McGee v Railroad, 214 Mo. 530; Ridenhour v. Railroad, 102 Mo. 286; Spillane v. Railroad, 135 Mo. 414; Walker v. Railroad, 193 Mo. 481; Deschner v. Railroad, 200 Mo. 328; Payne v. Railroad, 136 Mo. 562; Mann v. Railroad, 123 Mo.App. 491; Hardt v. Koenig, 137 Mo.App. 599; Stegmann v. Gerber, 146 Mo.App. 116; Henry v. Railroad, 141 Mo.App. 351; Witte v. Stifel, 126 Mo. 295. (2) Because under the clear admissions made by plaintiff's petition in the former suit, and in his deposition taken therein, he cannot recover in the absence of full and unquestionable explanations to overcome them; and these explanations were not offered. Smith v. Railroad, 184 F. 387; Barber v. Stroub, 111 Mo.App. 57; Richards v. McCormick, 119 Mich. 7, 77 N.W. 1116; Grier v. Canada, 119 Tenn. 17, 109 S.W. 970; Lee v. Calvert, 57 S.W. 627; Blid v. Blid, 117 N. W. (Neb.) 700; Target Co. v. Pigeon Co., 52 F. 385; In re Cogswell & Co., 93 Mo.App. 482; Boettger v. Rochling, 74 Mo.App. 257; Dowzelot v. Rawlings, 58 Mo. 77; Houston v. Railroad, 118 Mo.App. 470; Bond v. Railroad, 110 Mo App. 136; Shanahan v. Railroad, 109 Mo.App. 23; Sepetowsky v. Railroad, 102 Mo.App. 122; Ephland v. Railroad, 57 Mo.App. 147; Shirts v. Overjohn, 60 Mo. 309; State v. Brooks, 99 Mo. 143; Feary v. Railroad, 162 Mo. 106; Cogan v. Railroad, 101 Mo.App. 189; Pratt v. Conway, 148 Mo. 299; St. Louis v. Babcock, 156 Mo. 157; Fiedler v. Bowbrick, 135 Mo.App. 305; Tootle v. Buckingham, 190 Mo. 195; Schultz v. Culbertson, 125 Wis. 169, 163 N.W. 234; 16 Cyc. 1045. (3) Because there is no proof, either by direct evidence or circumstances from which it could be reasonably inferred, that plaintiff fell from the car and was injured as a result of defendant's negligence. Railroad v. Foreman, 174 F. 337; Hyer v. Janesville, 101 Wis. 371, 77 N.W. 729; Ryan v. McCully, 123 Mo. 646; Lueke v. Graham, 123 Mo.App. 212; Warner v. Railroad, 178 Mo. 125; Trigg v. Company, 187 Mo. 227; Smart v. Kansas City, 91 Mo.App. 586; Purcell v. Shoe Co., 187 Mo. 276; Breen v. Cooperage Co., 50 Mo.App. 202; Fry v. Transit Co., 111 Mo.App. 334; Hicks v. Railroad, 46 Mo.App. 304; Knorp v. Wagoner, 195 Mo. 665; Myers v. Glass Co., 129 Mo.App. 562; Harvey v. Railroad, 6 Mo.App. 585; Byerly v. Light Co., 130 Mo.App. 593; Manning v. Ins. Co., 100 U.S. 693, 25 L.Ed. 761; Looney v. Railroad, 200 U.S. 480, 50 L.Ed. 564; Yarnell v. Railroad, 113 Mo. 588; Patton v. Railroad, 179 U.S. 658, 45 L.Ed. 361; Catlett v. Railroad, 21 S.W. 1062; Barney v. Railroad, 126 Mo. 372. (4) Instruction No. 1 given for plaintiff is erroneous, because it instructs plaintiff's care to be only such as a person of his age ordinarily exercises. Eswin v. Railroad, 96 Mo. 290; Ruschenburg v. Railroad, 161 Mo. 87; Schmitz v. Railroad, 119 Mo. 276; Moeller v. Railroad, 133 Mo.App. 68; Saller v. Shoe Co., 130 Mo.App. 712; Lougree v. Mfg. Co., 120 Mo.App. 478; Fry v. Transit Co., 111 Mo.App. 333.

F. H. Lee and Thomas & Hackney for respondent.

(1) For this wrongful act of the brakeman the defendant was clearly liable. Haehl v. Railroad, 119 Mo. 325; Curtis v. Railroad, 99 Mo.App. 507. (2) The defendant's negligence occupies the whole field of culpability to the exclusion of all other acts of negligence and presents itself as the sole producing cause. In such case the contributory negligence of plaintiff but serves to afford the condition for the operation of the final act. Ross v. Railroad, 113 Mo.App. 605. (3) Even if plaintiff had yielded to the command and the assault of the brakeman and had jumped off of the train, he could not have been charged with contributory negligence, because this was the very thing that the brakeman was endeavoring to get him to do. Farber v. Railroad, 139 Mo. 282. (4) The principal is liable for the neglect, fraud or other wrongful act of his agent in the course of his employment, though the principal did not authorize the specific act. Garretzen v. Duenckel, 50 Mo. 104; Mead v. Railroad, 68 Mo.App. 92; Curtis v. Railroad, 99 Mo.App. 507; Haehl v. Railroad, 119 Mo. 325; Chandler v. Gloyd, 217 Mo. 415; Bouillon v. Gas Light Co., 148 Mo.App. 473. (5) Admissions in pleadings filed on behalf of an infant are not binding on him. 22 Cyc. 516, 661, 663; 1 Ency. of Evidence, 460. (6) The admissions made in a pleading by a guardian ad litem or next friend of an infant are not binding on the infant. Collins v. Trotter, 81 Mo. 281; White v. Joyce, 158 U.S. 146; Knights Templar v. Crayton, 209 Ill. 550, 70 N.E. 1066.

OPINION

NIXON, P. J.

The respondent, a boy ten years of age, sued the appellant by his father as next friend for damages on account of personal injuries received on May 19, 1910, in the yards of the defendant company at Joplin, one of defendant's trains having run over and crushed his leg in such a way that amputation was necessary. The trial resulted in a verdict in favor of the plaintiff in the sum of $ 2,500 and the defendant has appealed.

The negligent acts of the defendant as charged in the petition were, in effect, as follows: That the plaintiff having jumped upon the ladder of one of defendant's freight cars in its yards in Joplin, the train of which said car was a part was put in rapid motion and that in consequence of the rapid motion plaintiff held to the car until the speed of the train should be so slackened that the plaintiff could dismount with reasonable safety, and that while plaintiff was in said position on said car, and while it was dangerous for him to get off because of the speed at which said car was running, the brakeman of the defendant in the course of his employment for the defendant in the operation of said train, having knowledge of the perilous condition of the plaintiff and of the danger of plaintiff being put off or attempting to get off of said train while in such rapid motion, negligently, carelessly, willfully, recklessly and cruelly assaulted the plaintiff and threw at plaintiff a large substance or missile which had the appearance of a large stone, and negligently, carelessly, willfully and recklessly commanded and directed the plaintiff to get off of said train while the same was in rapid motion as aforesaid, and that the plaintiff being of tender years was so terrified and frightened by said assault and by the throwing of said substance and missile, and by the command of said employee, that he attempted to dodge from said assault and the throwing of said missile, and in so doing plaintiff slipped and fell from said train while the train was in rapid motion as aforesaid, and fell under said train and one of the cars of said train struck the plaintiff and ran over and crushed and mangled his right leg and ankle.

Several witnesses were introduced by the plaintiff; among others, Hazel Adams, who testified that she was in the defendant's railroad yards at Joplin at the time the accident occurred and that she saw the plaintiff down on the railroad track at the time he was injured. That he had his hand and one foot on a railroad box car, and that the man who was on the car in front of said box car threw a handful of gravel at him; that the boy fell and one of his feet went under the train and was run over; that the man who threw at him was a brakeman who was standing on a flat car and that he got the gravel on the car; that he shouted to the boy just before he threw but she didn't know what he said; that he just picked up some gravel and threw it at the boy and hallooed and the boy fell off the train; that the train was moving at the time,--going towards the depot. The evidence further tended to show that the boy had boarded the train and was riding on the ladder on the freight car in question, holding to the ladder with his hands, and that one or both of his feet were on the lower step of the ladder; that the car was moving at the rate of seven or eight miles an hour at the time the defendant's brakeman (who was on the flat car just ahead of the car on which plaintiff was riding) hallooed at the boy in a harsh tone for the purpose of causing him to get off the car and made a motion and threw some substance or missile at him. He dodged the substance thrown at him, but his foot slipped and he fell under the moving train and was injured. The jury may have inferred from the evidence that the purpose of the brakeman in thus hallooing at the plaintiff and throwing at him was to make him get off the train.

As stated, the accident occurred on May 19, 1910. The suit was commenced against the defendant company for damages on account of said injuries by his next friend on May 21, 1910. The petition then filed was subsequently amended on November 21, 1910. The cause of action as stated in this petition and its amendment was a substantially different narrative of the facts in regard to the accident than that contained in the present petition which was filed on May 12, 1911, the first suit having been voluntarily dismissed by the plaintiff. The former petition alleged that the plaintiff at the time of the accident was on ground passing along a footpath near the defendant's railroad track while the defendant's freight...