228 S.W. 780
287 Mo. 64
ST. LOUIS-SAN FRANCISCO RY. CO.
Supreme Court of Missouri, Division No. 2.
March 7, 1921.
Motion for Rehearing and to Transfer to Banc Denied March 19, 1921.
Appeal from, St. Louis Circuit Court; Frank Landwehr, Judge.
Action by William Jones, an infant, by Frank J. Zones, his next friend, against the St. Louis-San Francisco Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.
This action was commenced in the circuit court of the city of St. Louis, Mo., on August 20, 1917. The case was tried on the second amended petition, which states, in substance,
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that plaintiff was a minor between 12 and 15 years of age; that Frank J. Jones was appointed his next friend, qualified as such, and prosecutes this action in that behalf; that defendant is a railroad corporation, and in July, 1917, operated a line of railroad from Starland, in Perry county, Mo., to St. Louis, in said state; that on or about July 17, 1917, at or near Crystal City, Mo., plaintiff boarded one of defendant's freight trains on said road, bound for St. Louis; that while on said train, and while it was in rapid motion, one of defendant's servants in charge of said train did willfully, intentionally, wrongfully, and maliciously threaten to strike plaintiff, and did strike him, whereby he was caused to fall from said train while it was in rapid motion, and one or more wheels of said train ran over, crushed, lacerated, tore, and bruised plaintiff's left foot, so that the front half thereof had to be and was amputated; that plaintiff's head, limbs, and body were bruised ; that his back was lacerated, torn, and bruised, and plaintiff sustained a great nervous shock; "that said acts of said servant in charge of said freight train were within the scope of his employment and authority under defendant, and were done while he was undertaking to serve defendant pursuant to his said employment and while he was in the course of his employment under defendant; that by his injuries so sustained plaintiff has suffered," etc. The petition concludes with a prayer for $20,000 actual damages and $10,000 punitive damages.
The answer is a general denial.
It appears from the evidence that plaintiff, who was about 14 years of age, and two companions, Edward and William Hawver, about 15 and 13 years of age, respectively, on July 17, 1917, were in Crystal City aforesaid, and were desirous of returning to St. Louis, Mo., where they lived; that about 300 or 400 feet north of defendant's depot at Crystal City a bridge was in course of erection over defendant's track; that about 1 o'clock on that day a north-bound freight train passed through Crystal City on its way to St. Louis; that plaintiff and the older Hawver boy, Edward, according to their testimony, got on this train from the west side, while it was in motion; that the younger Hawver boy did not get on the train, but ran along the side of same. Plaintiff testified, in substance, that he and his two companions were standing beside the track about 15 feet north of the bridge when the train came along; that the train was running about 15 or 20 miles an hour; that Edward Hawver got on the side of a car, near the engine, and plaintiff got on two cars behind him; that the smaller boy did not get on, but ran along by the side of the train; that plaintiff climbed on a box car by the iron handholds until he got within about 2 feet of the top of same; that he climbed about four or five of those steps before he was hurt. "He testified that "the brakeman was on top of the car with a stick, and he said, `What are you doing there?' and he hit me with the stick, and I fell off"; that this man struck him on the left shoulder; that he did not know what the man hit him with, but it was about 2 feet long and looked like an axe handle; that he hit plaintiff hard, and knocked him off the train; that plaintiff fell on his back on the sand; that the latter slanted to the track; that plaintiff slipped under the train and his left foot was cut off; that the brakeman of that train struck him. He further testified on cross-examination:
"Q. How did you know that man was a brakeman on that train? A. I have saw them before."
He said the brakeman just hit him once; that he had ridden about 100 feet from where he got on the train.
Plaintiff was then taken to the office of Dr. Commerford, where his injuries were dressed.
Edward Hawver testified by deposition that —
"The three of us got on, we boarded the train. I was on a coal car near the middle of the train, and the two other boys got on two ears back of me. I saw a brakeman on the train, and he told the boy to get off; hollered and told him to get off. The train was in motion when this was done. The freight train was running about 15 or 20 miles an hour. I first knew that an accident had occurred when my brother hollered for me."
On cross-examination he testified, in substance, that he did not see his brother get on the train; that the latter had gone about two or three city blocks from the bridge when plaintiff got off, and the train was going 15 or 20 miles an hour when he got off; that the brakeman whom he saw was on top of the box car where plaintiff was; that plaintiff was on the back end of the box car; that the brakeman told plaintiff to get off, but did not say anything to witness; that as soon as the brakeman said "Get off," plaintiff hopped off and fell; that his brother was running along the side of the train behind witness; that he was running at the side of the car Jones was on all the time.
William Hawver testified, in substance, that his brother first boarded a car, and plaintiff got on a car two cars further back. He testified: "I saw a brakeman holler at Jones boy and scared him and he sort of ran backwards and fell, and cut his foot off, and I hollered up to my brother to get off the train;" that the train was going 15 or 20 miles per hour; that plaintiff got on two cars further back than his brother; that as witness was going along the side of the freight train he saw a brakeman hollering at Jones and trying to scare him; that he made Jones unbalance himself, and he fell backwards; that his foot went right underneath the car,
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and his foot was cut off up to the center of his arch; that he saw the brakeman on top of the box car; that he had a club in his hand and it looked like an axe handle; that he picked it up and started to hit plaintiff; that he hollered at plaintiff; the latter overbalanced himself and went off; that witness did not get on the train. On cross-examination witness testified that the brakeman was on top the car about the middle and kneeling down; that, when the brakeman hollered, witness saw him raise a club; that he heard the brakeman tell plaintiff to get down off the car or he would hit him with the club. Witness further testified:
"And with that freight train running 15 or 20 miles an hour I was keeping up with that car, and above all the noise that train was making I could hear what the brakeman said to William Jones." (Italics ours.)
This witness further testified:
"Q. You say this brakeman had a club in his hand? A. Yes, sir.
"Q. He didn't hit William Jones, did he? A. Yes, sir; he made a break to.
"Q. What did he do? A. He held the club up and started to strike him.
"Q. Well, did he strike him? A. Yes, sir.
"Q. How long was that club? A. Two foot.
"Q. About 2 feet? A. Yes, sir.
"Q. How far was the brakeman from William Jones? A. You mean by feet?
"Q. Yes. A. About 13 feet.
"Q. About 13 feet from him. The brakeman was up on top of the box car? A. Yes, sir.
"Q. And William Jones was down on the side of the coal car? A. Yes, sir.
"Q. Did you see William Zones get off? L. He didn't get off; he fell off.
"Q. He fell off? A. Yes, sir.
"Q. Did you see him fall? A. Yes, sir.
"Q. Where were you when he fell? A. Down by the side of the box car.
"Q. By the side of the same box car you had been running along by? A. Yes, sir.
"Q. How fast was that train going when he fell off? A. Kept the same rate of speed."
John Warmack, a witness for plaintiff, testified that he worked about nine years for defendant on the line of road running from Starland to St. Louis; that he started as a brakeman, and got to be a conductor; that on through freights, defendant had two brakemen, and three brakemen on local freight trains; that he knew what the duties of a brakeman were during above period, on freight trains running over said road. The following questions were then propounded to said witness:
"Q. What were the duties, during those times, in regard to persons, take first the case of persons, including trespassers, who are not members of the train crew and who are not passengers, and who get on the freight cars; what were the duties of a brakeman in that event?
"Mr. Stewart: I desire to object to that, because it is incompetent, irrelevant, and immaterial and calls for the conclusion of the witness." (Italics ours.)
This objection was overruled, and an exception saved. Witness then answered that the duties of the brakemen were to keep trespassers off the train and to put them off if they got on. On cross-examination this witness testified that he had been discharged from service on account of a rear-end collision; that he sought re-employment, and defendant refused to reinstate him; that the conductor is in charge of the train.
E. D. Cooper was sworn as a witness for plaintiff, and testified, in substance, that he was a brakeman on defendant's road in Oklahoma, and had passed over the line from St. Louis to Starland on passenger trains a few times. Witness was then asked to state what the duties of a brakeman were in respect to ejecting persons from the trains who had no right to ride thereon. This was objected to for the same reason heretofore assigned as to the testimony of Warmack on the same subject. The objection was overruled...