94 Mo. App. 458 | Mo. Ct. App. | 1902
This is an action for personal injury in which plaintiff obtained a judgment in'the trial court. The case was here on another occasion and will be found reported in 84 Mo. App. 358. By reference to that volume it will be seen that plaintiff (a young man under twenty-one years of age) was a trespasser attempting to ride on one of defendant’s freight trains, and being discovered by a brakeman, was forced to jump off the train while in rapid motion, and in consequence was injured. We then reversed the judgment, which had been rendered for plaintiff, mainly on account of error in the matter of proof of authority in the brakeman to eject persons from the train. We held that mere proof that the offending employee was a brakeman, was not sufficient to show that ejecting trespassers was within the line of his duty.
On a retrial plaintiff was permitted to show that before starting out on the trip over defendant’s road, he had been engaged in employment and earned money. That he had worked some for his father and others, and also that he had learned the trade of brassmoulder. Connected with the objection to this evidence is a point made against plaintiff’s instruc
It is, however, insisted by plaintiff that defendant did not object to the testimony aforesaid. The objection was not made to each question which drew out the evidence, but at its inception defendant did specifically object to evidence of plaintiff having been employed, for the reason that it was not pleaded.
The evidence offered by plaintiff to show that it was a part of the brakeman’s duty to eject trespassers from the train consisted in great part in showing that brakemen, at about the time of this occurrence and a long time prior thereto, had com
The wrong charged in this case was committed by the brakeman in the manner of ejecting plaintiff from the train. To hold defendant liable for that wrong, makes it necessary to establish the brakeman’s authority in that behalf. One of the principal modes adopted by plaintiff for proving such authority was to show that it was an authority commonly exer
The judgment will be reversed and the cause remanded.