241 F. 454 | 8th Cir. | 1917
The plaintiff in error, hereafter referred to as the plaintiff, brought this action against the defendant in error, hereafter referred to as the defendant, to recover damages for the death of her son, a boy of about 11% years old, alleged to have been caused by the negligence of the defendant. The record discloses the following facts:
On the 4th of January, 1914, Eréd Craft, a locomotive engineer, and Clyde Henderson, a locomotive fireman, both in the employ of the defendant, were at Moberly, Mo., in charge of one of the defendant’s engines; that this engine had been in the shops for repair, and they were taking it out on the road to “try it out” before putting it back into regular service; that before leaving Moberly the plaintiff’s son requested and was permitted by the engineer to ride on the engine; that upon leaving Moberly the engine was running backward, and as it came to the switch at Cairo, a station 6 miles distant from Moberly, it left the rails, turned over on its side, and the engineer and boy received injuries from which they both died; that the engine on which the plaintiff’s intestate was riding, at his request and with permission of the engineer, was one used in the passenger service; that its maximum speed was about 60 miles an hour; that the boy was riding in 'the cab upon the fireman’s side of the engine, and at the time of the accident was standing in front of the seat box, a place entirely safe so long as the engine remained upon the rails; that the track at that place prior to the accident was in good condition. The only conflicting evidence, in the record is as to the rate of speed at which the .engine was running at the time of its derailment. The fireman, who was upon the engine at the time of the accident, testified that it was running about 15 miles an hour. Other witnesses, who noticed the engine as it came into Cairo, fixed the speed at from 25 to 35 miles per hour.
The petition was several times amended. In the fourth and last amendment, filed on the 31st of August, 1915, the plaintiff states:
“Plaintiff withdraws all the allegations of her petition charging that the defendant’s employés negligently induced and invited the deceased to get upon the engine; also all allegations of negligence based upon the unsafe and dangerous condition of the defendant’s track, except in so far as knowledge of the condition of said track bears on the care required of defendant’s engineer and fireman in running said locomotive over the same.”
“That the particular acts of negligence, inefficiency, and carelessness of the employés and agents of the defendant, upon which she seeks to predicate negligence, are that the defendant’s said employes at the time well knew that the said railroad track at the time and place of the injury was not level, one side being about one inch lower than the other, and with said knowledge were running said engine backward at the time said injury was received by the deceased at the dangerous and hazardous rate of speed of 30 to 35 miles an hour; and plaintiff avers that the running of said engine backward over said track at said rate- of speed was in and of itself gross negligence on the part of said employés.”
By this last amendment the plaintiff narrowed the issues, and based her right to recover upon the averments that the defendant’s employés at the time of the. accident were negligently running the engine backward over the track at a dangerous rate of speed, and that its derailment was caused thereby. • At the close of the plaintiff’s evidence,
The four assignments of error present but a single question: Was the court justified under the facts and law in sustaining the defendant’s motion and directing a verdict in its favor? In determining this question the controlling feature is: Was there a duty to the plaintiff’s intestate which was violated by the defendant? If there was, then the court erred in giving the instruction requested. If there was not, there is no legal liability, and tlie court committed no error in instructing the jury as it did.
“The solution of the questions at issue is not to be sought in the rules of law appertaining to common carriers. It must be obtained from the principles of .the law of agency. The true inquiry is whether the conductor, as- an agent of the defendant, had the power to take the plaintiff upon the train in such a way as to bind the defendant as a carrier to him as a passenger.” Eaton v. Delaware, L. & W. R. R. Co., 57 N. Y. 382, 15 Am. Rep. 513.
And the Supreme Court of Missouri in Farber v. Mo. Pac. Ry. Co., 116 Mo. 81, 22 S. W. 631, 20 L. R. A. 350, said:
“It being then an uneontroverted fact that plaintiff ‘was wrongfully, and without any lawful right whatever, on the train, the liability of the defendant to him for an injury he may have received is not founded upon the duty and obligations imposed by the law of common carriers, but is referable to the law of agency.”
“But, however this may 'be, it is obvious that it was of great importance to the railway company that the jury be instructed that the fact of derailment of the train did not in itself raise’ a presumption of negligence for which it was chargeable. Such an instruction was requested, and it was refused by the Circuit Court. It is familiar doctrine that in cases betweeh employé and employer the law does not presume carelessness or negligence on the part of the latter. And the presumption in the case before us is that due care was exercised by the company in respect to the condition of the engine, cars, and railroad track, and also that those in charge, of the operation of the train performed their duty.”
In the case just cited an express messenger was injured by the derailment of a train upon which he was working. If the presumption of negligence would not arise in such a case, it certainly would not arise in the case of a trespasser.
“So long as men are human they will make mistakes, and at times be guilty of carelessness. Few, however, are so base or so lacking in decent regard for human life as to willfully or wantonly do or omit an act of duty by which death or disaster to others may reasonably be expected to follow, and, in the absence of other facts pointing to such conclusion, neither court nor jury should, from the mere fact that an injury has been negligently occasioned, assume to characterize the conduct of the negligent person as willful or wanton.”