Sherman v. Hannibal & St. Joseph R.R. Co.

• Decision Date: 30 April 1880
• Citation: 72 Mo. 62
• Parties: SHERMAN v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

72 Mo. 62

SHERMAN

v.THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

April Term, 1880.

Appeal from Livingston Circuit Court.--HON. E. J. BROADDUS, Judge.

REVERSED.

Geo. W. Easley for appellant.

S. Turner for respondent.

1. PRACTICE: proof of guardianship.

HOUGH, J.

The petition in this case alleged the minority of the plaintiff and the appointment by the probate court of Livingston county of Ellen Sherman as his guardian. The appointment of the guardian is specifically denied in the answer and the record fails to show that any evidence was offered on that subject. Following the decision of this court in the case of Porter v. The Hannibal & St. Joseph R. R. Co., 60 Mo. 160, the judgment must, for this cause, be reversed.

As the case must be retried, it will be proper to make some observations upon the law of the case as presented by the record now before us. The evidence taken at the trial is preserved in the bill of exceptions in the following form: The plaintiff introduced evidence tending to prove that the plaintiff got on a freight train of defendant at Chillicothe, about October 6th, 1875, without the knowledge or consent of his parents; that he rode on said car some ten miles when he was discovered, being still in Livingston county, by a brakeman on said train, when he was told by the brakeman if he wanted to ride he must help brake, and placed him at a brake and instructed him in the signals when to brake and signal the engineer; and when he got to Cameron he was told if he wanted to ride to St. Joe he must help coal up; that the said brakeman permitted him to ride on said train, and not in the caboose car attached to the train for the purpose of carrying passengers, till the train arrived at Cameron, a point forty miles west of Chillicothe; that at Cameron the plaintiff, who was thirteen years and ten months old, and a bright, capable boy of his age, was directed by said brakeman to assist in coaling up the engine, which he did; that when it was coaled up, the brakeman told the boy to get on top of a certain freight car if he wanted to ride to St. Joseph, which he did; and while riding on top of said train, and about one mile from St. Joseph, and in Buchanan county, the brakeman, by signs, directed the plaintiff to adjust some boards on a car, which boards were falling off; that while plaintiff was in the act of so adjusting said boards, one of them striking on and against a post hit and threw plaintiff off the train, which was then in rapid motion, and broke his leg, seriously injuring him for life; that the conductor of said train knew plaintiff was on the train at Cameron and afterward to the time of the accident, but never spoke to him or gave him any directions in any way.

Defendant offered evidence tending to show that the conductor had exclusive control of the train and all persons on it; that plaintiff never paid any fare; that he secreted himself when he got on the train; that no employee of defendant had any authority from defendant to carry passengers unless they paid their fare, and never to permit any person to ride on any part of their train except in the caboose attached to the train for the purpose of carrying passengers; that this train had a caboose attached; that all conductors and brakemen had been instructed never to carry any person without he paid his fare, and never to carry any person on a train other than in the caboose; that the brakeman had exclusive control of coaling up at Cameron.

2. RAILROAD: free rider on freight train, to be regarded as a passenger, when.

It may be conceded that the plaintiff is to be regarded as a passenger at the time he was injured. The train being one on which passengers were allowed to be carried, although the plaintiff boarded the train without the permission or knowledge of the conductor, yet as the conductor, after he became aware of his presence on the train, suffered him to remain, he was entitled to the same protection as if he had paid his fare. Wilton v. Middlesex R. R., 107 Mass. 108.

3. MASTER LIABLE FORTORTS OF SERVANT, WHEN.

It is plain, however, from the testimoy, which we have inserted at length, that the plaintiff was...