Leach v. St. Louis-San Francisco Ry. Co.

• Decision Date: 15 April 1931
• Docket Number: No. 5631.,5631.
• Citation: 48 F.2d 722
• Parties: LEACH v. St. LOUIS-SAN FRANCISCO RY. CO. (two cases).
• Court: U.S. Court of Appeals — Sixth Circuit

48 F.2d 722 (1931)

LEACH v. St. LOUIS-SAN FRANCISCO RY. CO. (two cases).

No. 5631.

Circuit Court of Appeals, Sixth Circuit.

April 15, 1931.

Lowell W. Taylor and A. A. Hornsby, both of Memphis, Tenn., for appellants.

Canada, Williams & Russell, of Memphis, Tenn., for appellee.

Before MOORMAN, HICKS, and HICKENLOOPER, Circuit Judges.

HICKS, Circuit Judge.

These cases were heard together both in the District Court and here. Appellant Ernest K. Leach, Jr., sued appellee for damages for personal injuries. E. K. Leach, Sr., father of Ernest K. Leach, Jr., sued upon the same accident for damages for loss of the services of his son and for the expenses incident to the treatment of his injuries. At the time of the accident Ernest K. Leach, Jr., was about 12 years of age. On his way home about 5 o'clock p. m., November 7, 1928, he was walking along appellee's right of way near its intersection with McLemore avenue in Memphis, and as one of appellee's freight trains started, overtook, and was slowly passing him, he ran along beside it, climbed upon it, and took a position between two box cars, where he rode until his left foot was somehow caught between the cars and crushed. He extricated his foot and jumped to the ground after he had ridden about a thousand feet. The train was moving very slowly when he got on it, but gradually increased its speed to about 15 miles per hour. Appellants here challenge the correctness of directed verdicts in favor of appellee upon motions made at the close of appellants' evidence. We think the motions should have been denied.

As to the case of Ernest K. Leach, Jr.: The uncontradicted evidence is that "the man on the engine" leaned out of the window and watched the boy as he climbed upon the train and that "the defendant's employee up on top of one of the box cars" otherwise styled "another one of those in charge of the operation of the trains" saw him climb upon the cars. The inference is that these employees were the engineer and a brakeman. Nothing indicates that either of them knew the boy. It is fair to assume, however, that to them he had the appearance in size of the average boy of his age and with the train increasing its speed the engineer and brakeman must have known or at least a jury might reasonably conclude that they knew that the situation was perilous for such a boy. Neither of them did anything about it. We think that whether it was negligence for the engineer and fireman to unconcernedly permit the boy to board the train and continue in such position was at least a jury question. If these employees knew of his danger, it is settled that it was their duty to use ordinary care to prevent his injury. Gilbert v. Erie R. Co., 97 F. 747, 752 (C. C. A. 6); Robbins v. Penna. Co., 245 F. 435, 441 (C. C. A. 6). This is the familiar doctrine of "discovered peril." Even a trespasser is entitled to the observance of due care for his protection after those in charge of the train know that he has exposed himself to peril. Newport News & M. V. Co. v. Howe, 52 F. 362, 369 (C. C. A. 6); Felton v. Aubrey, 74 F. 350, 356 (C. C. A. 6); Salt Lake & U. R. Co. v. Trumbull (C. C. A.) 246 F. 806, 808; Kalmich v. White, 95 Conn. 568, 572, 111 A. 845; Trevethan v. Phila. & Reading Ry. Co., 244 Pa. 414, 416, 90 A. 796; Thompson on Neg. (2d Ed.) Vol. 2, sec. 1806; Cooley on Torts, § 674.

We cannot say that there was no adequate time, after the boy mounted the cars, to make protective measures effective. He boarded the train just after it started and while it was running very slowly. A fair inference is that he rode a considerable distance before he was injured; that he then extricated himself and jumped off after he had ridden about a thousand feet. Fair-minded men might reasonably believe that after the boy was seen entering between the cars the engineer could have stopped the train and avoided the accident or that the brakeman might have given the boy some effective warning of his peril and aided him to alight in safety. The evidence tends to show that the brakeman was on one of the box cars. If these protective steps or any of them could have been taken, then the question of whether the situation demanded their exercise was for the jury. The law of course requires no more than ordinary or due care but after all such terms as "ordinary care," "due care," or "due diligence" are of relative significance. They yield to no fixed or arbitrary definition. The degree of care required in any given situation is that which is commensurate with the danger involved. We cannot say as a matter of law that ordinary precaution did not require the brakeman to at least call to the boy and...