This
cause was submitted upon the following agreed statement of
facts:
'The
parties to the above-entitled action hereby admit as facts
for all the purposes of the trial and determination of the
issues in said action, by the above-entitled court, and to
be considered as if fully established by competent proof
legally admissible and duly admitted, the following
circumstances, facts, and conditions:
'First.
That at all the times mentioned in the complainant, ever
since, and now the defendant Great Northern Railway
Company has been and is a railroad corporation organized
under the laws of the state of Minnesota, and engaged as
a common carrier of freight and passengers from St. Paul
in the state of Minnesota, to Seattle, in the state of
Washington, and to and from intermediate points.
'Second.
That Marcus Ling, the plaintiff herein, is an infant, and at
the time of the injury herein complained about was between 2
1/2 and 3 years of age, and at the time of said injury was
living with his parents, C. W. Ling and Emma Ling, at their
home in the town of Havre, Choteau county, Mont., a distance
of about three blocks from the depot of the defendant company
in said town.
'Third.
That C. W. Ling is the duly appointed guardian ad litem of
said infant for the purposes of this action.
'Fourth.
That during all the times in the pleadings mentioned the
defendant had and maintained at said town of Havre a depot
for the accommodation of passengers entering its cars or
departing therefrom, for the loading and unloading of
freight, and for other purposes, and upon either side of said
depot there are, and at all of said times were, railway
tracks used in operating defendant's trains. That on
account of the location of said tracks on either side of said
depot, and because of the great number of passengers and
others usually at said depot upon the arrival and departure
of passenger trains, in order to afford protection to such
people, the defendant at all said times did, and now does
keep in its employ a watchman for the purpose of watching and
guarding the safety and comfort of passengers and others
rightfully at said depot.
'Fifth.
That at the time the plaintiff sustained the injury
hereinafter mentioned the said watchman so in the employ of
defendant was unnecessarily absent and away from said depot,
where his said employment required him to be, and the
defendant had no one at said depot at the time of said injury
to perform the services for which said watchman was employed,
except in so far as such services devolved upon the conductor
and other employes in charge of the passenger train that
caused said injury to the plaintiff.
'Sixth.
That if said watchman had been at the depot, in discharge of
the duties for which he was employed, there were no
conditions or circumstances to interfere with his seeing the
infant, and knowing that said infant was alone and unattended
by any one, and that there was danger of said infant being
struck by said passenger train, and injured upon the starting
of such train.
'Seventh.
That on May 10, 1903, at 11 o'clock a.m., said infant was
at said depot, alone and unattended by any one, and was
playing on the depot platform for at least 10 minutes prior
to the injury sustained by him, and when said passenger train
started on its journey the said infant was standing upon the
platform of said depot and leaning against the rear sleeping
car of such passenger train, and while in such position said
train, upon orders from the conductor thereof, suddenly
started, causing said infant to be disturbed in his footing
and causing him to fall beneath such train; his right hand
thereby being caught under one of the wheels of said train,
and so crushed that it had to be amputated. Said train was a
regular passenger train that stops at said depot for a short
time as per time schedule, and was in charge of a conductor,
engineer, fireman, and two brakemen. That the conductor in
charge of said train was upon said depot platform within a
short distance from the place where said injury occurred, and
gave orders to the engineer to move forward with said train
while said infant was so leaning against said rear sleeping
car, and at such time there existed no circumstances or
conditions to interfere with or prevent the said conductor
and other employes of defendant from seeing the said infant
and knowing that he was alone and unattended by any one, and
that there was danger of said infant being struck by
said train upon its starting, and injured in the manner that
he was injured. That no agent or employe of defendant made
any effort to prevent said infant, so unattended, from
playing about said depot at...
