Wilson v. The Atchison

• Decision Date: 10 January 1903
• Docket Number: 12,898
• Court: Kansas Supreme Court
• Parties: HOWARD M. WILSON, a Minor, etc., v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY

71 P. 282

66 Kan. 183

HOWARD M. WILSON, a Minor, etc., v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY

No. 12,898

Supreme Court of Kansas

January 10, 1903

Decided January, 1903.

Error from Wyandotte court of common pleas; WILLIAM G. HOLT, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. RAILROADS--Injury to Trespasser. As a general rule a railroad company owes no duty to trespassers who jump on and off its moving trains for the purpose of stealing rides, except not recklessly or wantonly to injure them after their peril is discovered.

2. RAILROADS--Boy Twelve Years Old Held Responsible. An intelligent boy, twelve years of age, who was familiar with the running of railroad-trains, and who knew and appreciated the danger of getting on and off a moving train, climbed upon a slow-moving train and was injured while getting down from one car and attempting to climb upon another. Held, that he was a conscious trespasser and responsible for his own negligence and injury.

3. RAILROADS--Previous Experience not an Invitation. The fact that the plaintiff and other boys had previously jumped on and off the cars of the company, without remonstrance from the employees of the company, did not amount to an invitation from the company to plaintiff to hop on and off its moving trains thereafter, nor make the company liable for an injury resulting from such reckless conduct.

H. G. Pope, and L. F. Bird, for plaintiff in error.

A. A. Hurd, for defendant in error.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

This was an action to recover for personal injuries. Howard M. Wilson, a bright, intelligent boy, about twelve years of age, climbed upon a freight-train consisting of about twenty cars, belonging to the Atchison, Topeka & Santa Fe Railway Company, which was slowly moving up a hill near Lansing. He and a companion began near the front end of the train and jumped on and off several times while it was in motion. He passed over the top of a car to the other side of the train and dropped off that car, and undertook to mount another one near the end of the train, and some way missed connection, with the result that the car ran over his foot and crushed it. It appears that he, as well as other boys of the community, frequently hopped on and off the cars as they went up the incline, and that he had practiced it for a period of about four years before the time of his injury. While he was crossing over a car he saw a brakeman on top of the train about two car lengths from him, who looked toward him and smiled, but said nothing, and no one ordered him or his companion to leave the train. Upon a demurrer to the evidence the court took the case from the jury, and gave judgment against the plaintiff for costs.

The evidence in the record shows this to be a clear case of contributory negligence. The plaintiff was a conscious trespasser, and, while he was a minor, the testimony shows beyond dispute that he was familiar with moving cars and had sufficient intelligence and experience to understand the peril to which he exposed himself. The case of A. T. & S. F. Rld. Co. v. Todd, 54 Kan. 551, 38 P. 804, was an action to recover damages for the death of a boy about ten years old, who was killed while playing in the yard of a railway company. The boy there, as here, understood and appreciated the danger to which he was exposed, and it was held that, being in a place where the company had the exclusive use of the tracks, and a trespasser, the only duty the railroad company owed him was not recklessly or wantonly to injure him.

In A. T. & S. F. Rld. Co. v. Plaskett, 47 Kan. 112, 27 P. 824, it was ruled that the railroad company was not bound to keep a lookout for children climbing on or under moving trains when passing through a city, and so here the railway company was not required to employ trainmen to keep boys from jumping on and off its moving trains, and the fact that boys had previously done so cannot be regarded as an invitation to the plaintiff to ride, nor relieve him from the...