The Union Pacific Railway Company v. Mitchell

• Decision Date: 11 January 1896
• Docket Number: 7981
• Citation: 43 P. 244,56 Kan. 324
• Parties: THE UNION PACIFIC RAILWAY COMPANY v. EDDIE MITCHELL, by his Father, John C. Mitchell, as his Next Friend
• Court: Kansas Supreme Court

43 P. 244

56 Kan. 324

THE UNION PACIFIC RAILWAY COMPANY v. EDDIE MITCHELL, by his Father, John C. Mitchell, as his Next Friend

No. 7981

Supreme Court of Kansas

January 11, 1896

Decided January, 1896.

Error from Douglas District Court.

ACTION by Eddie Mitchell by John C. Mitchell, as his next friend against The Union Pacific Railway Company, to recover damages for ejection from a train. There was a judgment for plaintiff, and defendant brings error.

The following facts are either undisputed or found by the jury The plaintiff below was a boy 14 years old. He had started from Olathe to go to Colorado Springs, where his father was. He had made his way over other railroads to Junction City from which point he had gone over the defendant's railroad as far as Wallace, which place he reached July 26 1890, on the first section of freight train No. 211, in company with some other boys who were beating their way west as he was doing. He got off the train at Wallace and prepared to board the second section, which pulled into Wallace about as the first section pulled out. Several tramps had attempted to board the first section, and they tried to get upon the second section as soon as it started up. Among those who were waiting to board the second section were young Mitchell and his companions. They knew they were not permitted to steal a ride upon the train, and that efforts would be made to prevent them from doing so. They did not attempt to get upon the train while it was standing still, but waited until it had started. Plaintiff below and his companions went upon the south side of the track, which was the side opposite the depot and buildings at Wallace, and after the train started he attempted to board a box car, but failed. He allowed two or three cars to pass him, and then jumped upon a coal-car having high sideboards. The train was going about as fast as he could run. He caught hold of the ladder with his right hand. His left hand held to an iron socket attached to the side of the car. His right foot was in the stirrup, and his left upon an axle-box. As he got upon the car he saw a boy or young man, Roy Wilson, (a stranger to him,) standing alongside the track, about 25 feet ahead of him, and also saw the conductor and head brakeman upon a box car ahead, and heard the conductor halloo to Roy Wilson to jerk him off or pull him off. Wilson then took hold of him and attempted to pull him off the train. Mitchell succeeded in holding on until he had got a few feet beyond Wilson, and then fell off, his hold having been loosened by the encounter. As he came to the ground his right arm fell under the wheels and was cut off. The train did not slow up after he got upon it, but continued on its way, the trainmen, not knowing that he was injured. The arm was necessarily amputated at the junction of the middle and upper third of the humerus. Roy Wilson was not an employee of the railway company, but was learning telegraphy in its office by the favor of the station agent at Wallace.

The essential instructions given by the court below, after a succinct statement of the issues, were as follows:

"Upon these issues, the burden of proof is upon the plaintiff; and before he can recover, he must prove, by a preponderance of the evidence, by which is meant the greater weight of proof,

"(1) That the defendant's line of railway extended into, and was operated in the counties of Wallace and Douglas, in this state, at the time complained of; (2) that the plaintiff while attempting to ride upon defendant's train, at Wallace, at the time charged, was pulled therefrom by said Roy Wilson, and injured in the manner substantially as alleged in the petition; (3) that said Roy Wilson was either an employee of said railway company, or was acting under the order or direction of the conductor or brakeman upon said train, in trying to eject the plaintiff therefrom; (4) that in removing or attempting to remove said plaintiff from the train, the conductor or brakeman of the defendant, or said Roy Wilson, so acting by their direction or authority, was guilty of wilful, wanton, malicious or reckless conduct, and that he sustained the injuries complained of in consequence of such wilful, wanton, malicious or reckless conduct.

"Eddie Mitchell, being a trespasser upon the grounds and train of the defendant, had no right on said train, and the defendant, by and through its agents, servants and employees, had a right to remove him therefrom. They were not bound to consult his convenience in the matter and can only be held liable in the matter for injuries inflicted which were wilful, wanton, or malicious, or which were so grossly negligent as to amount to wantonness. If, however, in ejecting him, they did so in a reckless, wilful, wanton, or malicious manner, whereby he was injured, he may recover. In determining whether wilful, wanton or malicious injuries were inflicted, you are to consider all the circumstances of time and place, the speed of the train, and the entire situation. 'Wanton,' as here used, is reckless sport; wilful, unrestrained action, running immoderately to excess. By 'recklessly,' is meant an indifference to the rights of others; an indifference whether wrong is done or not.

"I charge you that it is within the general authority of the conductor or a brakeman of a railway-train to keep trespassers off of their trains, and to put them off after they have gotten on. And if they recklessly, or in a wilful, wanton or malicious manner, eject a trespasser, so that he is likely to suffer great bodily harm, the railroad company becomes liable for the damages; nor is it necessary, in order to render the company liable, that the conductor or brakeman should actually lay hands on the trespasser; and if the trespasser is so ejected by a third person, at their instance, all are equally guilty of an assault, and the railroad company is liable.

"I charge you that if you find from the evidence in this case that Eddie Mitchell, on or about the 26th day of July, 1890 at the city of Wallace, in Wallace county, Kansas, climbed upon a car of one of the defendant's west-bound freight-trains, with the intention of stealing a ride, and that while attempting to get thereon, or While clinging thereto, the conductor or a brakeman of said train called to one Roy Wilson, whilst said train was in motion, to 'keep him off,' to 'jerk him off,' or 'pull him off,' and that said Roy Wilson, in obedience to said call or command, caught hold of said Eddie Mitchell, and...