163 Mo. App. 540 | Mo. Ct. App. | 1912
Defendant’s section hands permitted plaintiff’s son, about nine years of age, to ride with them on a hand car used by the section hands for the purpose of carrying them and also their tools and material used in their work on defendant’s road. Plaintiff’s son and other children had frequently rode on the car, and on the 17th day of January, 1910, the boy got on the car to ride to a schoolhouse, and jumped off while the car was in motion, and the car struck him and he was injured.
The petition alleged negligence in the following language: ‘ ‘ That the defendant and its employees was and for a long time previous had been accustomed to and did while so acting in the line of their employment for the defendant, negligently and carelessly induce, encourage and permit the son of plaintiff, an infant about the age of nine years, and divers other children in the absence and against the wishes, entreaties and protests of their said parents, and while said hand car was in motion being run as aforesaid over said road, to frequently jump upon and ride upon defendant’s said hand car, and to alight from defendant’s said hand ear while it was in motion. ’ ’
The petition then alleged that plaintiff’s child on the 17th day of January, 1910, was encouraged and permitted by defendant’s servants to and did get upon the hand car and was injured while attempting to alight therefrom.
At the conclusion of plaintiff’s testimony, the defendant presented a demurrer, and the same being sustained, plaintiff appealed to this court.
In Snyder v. Railroad, 60 Mo. 413, it is held that a railroad company is not liable for injuries received
In Wahl v. Transit Co., 203 Mo. 261, 101 S. W. 1, a xhotorman in control of and operating a street car saw a child five years of age, within a few feet of the track, and according to plaintiff’s evidence, the motorman stepped from his place to the platform to wave or frighten the child away, whereupon the child started to run across the track and was struck by the car. The court held that while the motorman was in charge of the car, it was a part of Ms duty to warn persons when apparently in danger of the approach of Ms car, and therefore, although he left his post of duty and frightened the cMld, the act was committed in the course of his employment. But the court reviewed the Snyder case, and reaffirmed its doctrine.
There is another reason why the judgment should be affirmed. There was no proof of the negligent act alleged in the petition. The plaintiff offered no testimony tending to prove that children were in the habit of getting on or off the car while it was in motion. The plaintiff’s son testified that he did get on and off the car on the day he was injured while it was in motion, but there was no testimony that he, or any other child had ever done so before. On the contrary, plaintiff’s witness testified that the servants were in the habit of stopping the car for the purpose of letting the boys alight therefrom.
While plaintiff’s 'son was perhaps seriously injured, and while mankind usually feel more indignation at wrong done to children than to others, yet such things alone must not govern or control the decisions of the courts, but liability must be determined by the rules of law. The judgment will be affirmed.