McCORMICK
Circuit Judge.
Dennis
Shaw, by his next friend, Mary Doyle, the defendant in error
brought his action against the Southern Railway Company, the
plaintiff in error, to recover damages for personal injuries
inflicted on him by a moving train of railroad cars which was
being operated by the plaintiff in error, stating his case
so far as we deem it necessary to quote from his petition
thus:
'That
on or about the 20th day of August, 1895, your petitioner,
who was a minor of only ten years of age, and whose mother
and father were both dead, lived with a colored man in the
city of Macon, who continually beat, abused, and so cruelly
treated your petitioner that he could no longer live with
him. That on or about said 20th day of August, 1895, your
petitioner left the city of Macon, and walked as far as the
first station on defendant's road south of Flovilla,
Georgia. That while your petitioner was at said station, on
said 20th day of August, 1895, one of the passenger trains
of the defendant, which was going north, stopped at said
station, and your petitioner, desiring to get to Atlanta,
Georgia, being tired and footsore, and having no money with
which to pay his fare, got under one of the cars of said
train, holding on by means of the beams, fastenings, and
iron rods under said car. That your petitioner rode in this
position until the train reached Jackson, Georgia, at which
station defendant's train again stopped. That, just as
the said train was leaving Jackson, and after it had begun
to move with considerable speed, the flagman on said train,
which said flagman was a servant and employe of the
defendant, discovered your petitioner riding under said
car; and, instead of stopping the train, and removing or
having your petitioner removed, as he had a right to do,
and as it was his duty to have done, he, the said flagman,
recklessly, wantonly, willfully, and maliciously caught and
grabbed your petitioner by the leg, and jerked, pulled, and
kicked him loose from under said car.'
The
plaintiff in error (the defendant below), besides the general
denials, not necessary to be quoted, answered:
'That
on the 20th day of August, 1895, a number of negro tramps
were attempting to steal a ride upon its north-bound
passenger train, known as train 'No. 7,' going from
Macon to Atlanta. That it was discovered, just as said
train moved off from Jackson, in said county of Butts, that
these tramps or trespassers were riding upon the trucks of
one of the coaches of said train. Thereupon the train was
stopped, and the train hands ordered said trespassers to
get off the trucks, which they then and there did, the
train having come to a full stop when they were ordered off
and when they got off. Thereupon the train again moved off,
and, after proceeding only a short distance, it was again
discovered by the train hands that all or some of these
trespassers had again gotten upon the trucks of said car.
That thereupon the train was again stopped, and the said
train hands ordered the said trespassers to get off of said
trucks, which they then and there did while the train was
standing still, and then the defendant's train
proceeded on its route to Atlanta. * * * Defendant
does not know the age of the plaintiff, but denies that his
father was dead, and also denies that the plaintiff was
beaten, abused, and cruelly treated by the colored man with
whom he lived in the city of Macon. On the contrary, the
defendant is informed that the plaintiff lived in Macon
with his father; that his father treated him kindly; and
that the plaintiff, without cause, or the knowledge of his
father, ran away from home.'
The
judge, in the opening of his general charge to the jury, used
this language:
'The
action is brought by the plaintiff to recover damages for
the mutilation of his person,-- the loss of one arm and a
portion of the hand of the other arm. It is not disputed
that the plaintiff was injured. The extent of his injuries
is not controverted; not is it disputed that the injuries
were sustained because one of the cars of a passenger train
of the defendant company ran over and crushed the arm of
the plaintiff and a portion of his hand. The
plaintiff's case depends upon the question whether or
not he has satisfactorily maintained by proof his
contention that he was unlawfully, recklessly, and
negligently ejected from the cars of the defendant
company.'
On this
vital issue, thus clearly stated to the jury, there was much
testimony offered which tended to support the plaintiff's
case, and much other testimony in conflict therewith. The
case came on for trial on the 30th of April, 1897, and
remained on trial continuously (excluding Sunday) until the
4th of May. Before the court began the charge to the jury,
the defendant's counsel submitted the following.
'Requests
to Charge by Defendant.
'Dennis
Shaw, by Next Friend, vs. Southern Railway Company.
'Defendant's
counsel respectfully ask the court to give in charge to the
jury the following requests (the same being made as separate
requests):
'(1)
In this case the plaintiff, by his own admission, was a
trespasser upon the defendant's train. In such case
there is no presumption against the defendant company, even
though the defendant was injured by the running of the cars
of the railroad. The burden of proof is on the plaintiff to
show that, if a trespasser, he was injured by the defendant
or its agents in such manner as to entitle him to recover
under the rules of law as given you by the court. The
plaintiff must show by the preponderance of the evidence
that he was injured in the manner alleged in his amended
declaration.
'(2)
'Where no duty of diligence appears relatively to the
person injured, there can be no presumption of its breach,
notwithstanding the broad language of section 3033 of the
Code. That section imposes the burden of proving the
observance of such diligence as was due; not the burden of
proving that none was due. For a railroad to be exempt from
liability for a personal injury done by the running of its
locomotives or cars, it is only necessary for it and its
agents to exercise all ordinary care and diligence (if any)
due from it and its agents relatively to the person
injured.' Holland v. Sparks, 92 Ga. 753,
headnote 1, 18 S.E. 990. See, also, Waterbury v.
Railroad Co., 17 F. 682, note, art. 1, Sec. 5.
'(3)
For the purpose of expelling a trespasser from a train, the
employes of a railroad company may lawfully use whatever
amount of force is reasonable, proper, and necessary.
'(4)
In this case the plaintiff states that he was stealing a
ride from Flovilla to Jackson; that, after the train left
Jackson, it slowed up, and that when it slowed up he could
have gotten off with safety; that he did not then get off;
that afterwards the flagman of the train attempted to pull
him off; that he resisted this effort forcibly. Upon this
state of facts, appearing from the plaintiff's
admissions, the court charges you that, if you believe the
plaintiff's statement to be true, then the
defendant's agents had the right to use some force in
removing him from the train, and such as was necessary for
the purpose.
'(5)
The railroad company in this case was not under any duty to
the plaintiff as a trespasser. The only limitation upon its
right to remove a trespasser
from the train is that the force used in such removal shall
not be unnecessary of wanton or malicious, or exercised for
the purpose of injuring the plaintiff.
'(6)
If, in this case, the jury believes the plaintiff's
statement to be true, and that he was upon the train after
it had 'slowed up' for the purpose of getting him
off; that he remained on the train in spite of his
knowledge of this purpose; that the train afterwards
stopped,-- the plaintiff stating that he could have gotten
off, when it stopped, with safety, and that after the train
began to move it moved forward at the rate of only three or
four miles an hour; that this rate of motion was about half
as fast as a man ordinarily walks, and that while the train
was moving thus slowly the flagman attempted to pull the
plaintiff off,-- the plaintiff resisting; and that the
flagman believed, and had reasonable cause to believe, that
at this rate of speed the plaintiff could be removed from
the train without injury; and that the flagman for the sole
purpose of removing the plaintiff, and not for the purpose
of injuring him, removed the plaintiff, and that the
falling of the plaintiff under the wheels was unavoidable
and unintended accident,-- then, in this case, the
defendant will not be liable.
'(6)
If the jury believe from the evidence that the plaintiff
got off the train at Jackson, and that as the train moved
off he got on again; that
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