| Kan. | Jan 15, 1887
It appears from the evidence that on the night of the 16th of June, 1884, while the northbound freight train on the defendant’s railroad stopped for water about one mile south of the city of Olathe, William Kelly got on the freight train between two freight cars, for the purpose of going to Kansas City; that he had no ticket, and no money to pay his fare; that he had been working in Galena, Cherokee county, Kansas, and had been sick, and was on his way home to Kansas City on the railroad without paying his fare. When the train started, and before it reached the station at Olathe, a brakeman passing over the train discovered the boy on the drawhead between the cars, and asked him where he was going, and whether he had any money to pay his fare; and the boy answered that he was going to Kansas City, and was without any money and could not pay his fare. The brakeman then directed him to get off the train. He said he would if they would slow up or stop the train. The brakeman then told him that the train was going slow enough for him to get off, and that he must jump off the train. The boy then climbed'upon the ladder on the side of the car. The brakeman stepped from the car he was on to the end of the car where the boy was and told him to get off or he would throw him off. In obedience to this demand he jumped off the train, and in falling his right leg was caught under the wheels of the car and his foot and ankle were crushed. He
The defendant had the right to put the boy off from its cars, and in doing so could use such force as was necessary to eject him, but in so doing must exercise the right with ordinary care and prudence on its part. And if the train was moving at such a rate of speed as to render it unsafe, and the night was dark, it must stop or slow up the train; and the mere fact that the boy was on the train as a trespasser was not such negligence as to relieve the defendant from this obligation, and gave its servants no license to negligently and wantonly eject him in a manner liable to do him great bodily harm. (Morgan v. Comm’rs of Miami Co., 27 Kan. 89" court="Kan." date_filed="1882-01-15" href="https://app.midpage.ai/document/morgan-v-board-of-commissioners-7885558?utm_source=webapp" opinion_id="7885558">27 Kas. 89.) And it could make no difference whether he was ejected by actual force or by threats, if he jumped from the train in obedience to a command of the brakeman. He being a boy fifteen years old, he would not be expected to use that degree of judgment and discretion which would be expected and required of an adult. He believed, and he had a right to believe,.that force would be used to'eject him; and when he saw the brakeman coming toward him, threatening to throw him off, he cannot under the circumstances be charged with negligence for not having waited longer. (Kline v. C. P. Rld. Co., 37 Cal. 404; Moulton v. Aldrich, 28 Kas. 312.)
Again, he was assured that it was safe to get off the train, and that it was not necessary to slow up. Belying upon either, the defendant cannot be heard to say that his injury was caused by his own negligence. What he was guilty of was in getting on the train without being prepared to comply with the regulations of the company in relation to the carrying of passengers, and trying to ride on the train without paying fare; but at the time of the injury defendant well knew of this negligence, and was informed of the tacts which showed him to be a trespasser on the train without right, save such right as the defendant owed even to trespassers. And we believe the true rule and doctrine to be that a railroad company is bound to exercise its dangerous business with due care
The defendant complains of the instructions given by the court to the jury. Some of these objections we deem of not sufficient importance to receive comment; others are covered by the general discussion of the questions in this opinion. The defendant particularly complains of a part of the sixth instruction, which is as follows:
“And I charge you that the plaintiff’s right to recover is not affected by his having contributed to the injury, unless he was at fault in so doing.”
The general rule is, that one cannot recover for an injury if he is guilty of negligence directly contributing to the injury; yet under the facts in this case, if the plaintiff was guilty of negligence, it was in boarding the defendant’s train without first procuring a ticket, or having money to pay his fare: in other words, in attempting to cheat the company and be transported for nothing. Technically speaking, the jumping off the train by the plaintiff was negligence; and this instruction, in speaking of the plaintiff’s negligence, was considering this kind of negligence: in fact, the only claim of uegligence relates to these two acts of the plaintiff. We admit that these acts, taken and considered by themselves alone, and unexplained by circumstances and motives, establish negligence where those acts result in the injury. In the first instance the negligent act of the plaintiff was discovered by the defendant before the injury; and after this discovery, by the slightest care on the part of the defendant, the injury could have been prevented. Then can it be said or claimed that by reason of this negligent act the plaintiff was inj ured ? As to the latter, it was caused by the acts of defendant’s servants while in the discharge of their master’s business. If the plaintiff, when discovered, had voluntarily jumped from the train while the train was in dangerous motion, or had done so
Again, the defendant presents a single sentence from the ninth instruction, and claims it to be error: “Plaintiff was only required to exercise ordinary care to avoid injury.” The ninth instruction, taken altogether, we think was properly given. It is as follows:
“ 9. Plaintiff was only required to exercise ordinary care to avoid injury, but this requisite could only be complied with by the exercise of that degree of caution which persons of his age and intelligence and of ordinary prudence would use under the same conditions of danger, and with like knowledge of the situation.”
This instruction, viewed in the light of the facts, properly states the law applicable to the facts. The plaintiff was on a train, and a trespasser. He was entitled to no protection from an injury resulting from his own acts or conduct, and could claim no protection from injuries received while so trespassing on the defendant’s train, resulting from the ordinary and usual operation and management of the defendant’s train; but to meet and protect himself against the wrongful acts of the defendant, he was not required to exercise more than ordinary care, considering his age, his situation and condition, and surrounding dangers. When he became a trespasser upon the train, he had no right to believe that by reason of that fact he was to be negligently or wantonly expelled, or ejected in a manner that would result in serious injury to himself. (Townley v. C. M. & St. P. Rly. Co., 53 Wis. 626" court="Wis." date_filed="1881-12-13" href="https://app.midpage.ai/document/townley-v-chicago-milwaukee--st-paul-railway-co-6603659?utm_source=webapp" opinion_id="6603659">53 Wis. 626.)
In conclusion, defendant insists that the special findings of the jury show passion toward the defendant. We have care
We find no error in the record, and therefore recommend that the judgment of the court below be affirmed.