Sachrowitz v. Atchison

• Decision Date: 08 October 1887
• Citation: 15 P. 242,37 Kan. 212
• Court: Kansas Supreme Court
• Parties: JOSEPH SACHROWITZ v. THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY

15 P. 242

37 Kan. 212

JOSEPH SACHROWITZ v. THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY

Supreme Court of Kansas

October 8, 1887

Error from Reno District Court.

ACTION brought by Joseph Sachrowitz against The Railroad Company, to recover damages for bodily injuries. Trial at the May Term 1885, and judgment for the defendant. The plaintiff brings the case here. The opinion states the material facts.

Judgment affirmed.

W. T Buckner, for plaintiff in error.

Geo. R Peck, A. A. Hurd, and C. N. Sterry, for defendant in error.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

This action was brought by the plaintiff in error to recover damages for personal injuries, which he alleges he sustained through the conduct of one of the servants or agents of the defendant in error. The defendant in his answer averred that the plaintiff sustained his injuries in attempting to climb upon a freight car while in motion, with the intention of riding on the car without paying any fare. On the trial, the plaintiff gave evidence tending to show that he is a Hebrew, and had been living in the United States only about two years; that just previous to his injuries he had started to go from Pueblo to Kansas City, and had purchased a ticket to be transported from Pueblo to Kansas City over defendant's road; that he had a gripsack containing his personal effects, which he shipped by express to Kansas City not wishing to be bothered with it on the cars; that when he had reached a point between Hutchinson and Burrton the conductor put him off the train he was riding on because he had either lost the pasteboard given him by a former conductor, or that conductor had taken it up; that when he was put off the train he had about five dollars in money; that he walked on to Burrton, reaching there shortly after noon; that while at Burrton he met a young man with whom he could talk a little, as this young man could talk German; that he gave this young man a half-dollar in exchange for a cigar case, and then walked around with him until towards evening, when they went into a private house and got a meal; that after this he left the young man and walked south of town some distance, and while he was there the regular passenger train going east passed through Burrton; that shortly after ten o'clock he came back toward the depot, and as he came, he saw the emigrant train standing there, and he then concluded to purchase a ticket to go to Newton upon it; that he thereafter attempted to cross over the cars to the platform and to the station, which was on the other side, but as he got upon the platform of one of the cars, the cars started, and he gave up his attempt to get to the depot; that just as the cars started, a man having a lantern with letters upon it, and a cap with a badge on it, holding the lantern in one hand and a club in the other, jumped upon the same platform, and struck the plaintiff with both the club and the lantern, or with one, on the head, knocking him senseless on the ground; that plaintiff never saw the man before; that he had no words with him at the time, the only thing said by either preceding the blows being the words, "You God-damned son of a bitch!" uttered by the man who struck him; that plaintiff at the time could neither write, speak, nor understand English, and did not and does not know what the letters were which were on the lantern, or the badge on this man's cap; that he thought this man was a railroad man because he had a lantern with letters on it, and a cap with a badge on it; that that was the only reason for saying or believing that he was a railroad man; that after plaintiff had lain where he fell for two or three minutes, this same man came running towards him and told him to get up, but plaintiff could not; that he seized the plaintiff, and raising him up with one hand, went through his pockets with the other; that as he did so, another man came running towards them, and as this man came, the one who had hold of him dropped him and ran off towards the town, away from the direction in which the train was; that this other man coming up, an alarm was given, and the citizens came and carried him to Dr. McAtee's office, where the doctor and his brother dressed his arm and set the bones; that the next morning Dr. Smalt, who was in the employ of the defendant, came and...