71 P. 846 | Kan. | 1903
The opinion of the court was delivered by
The only question presented in this case is whether the district court erred in sustaining a demurrer to the petition. The petition alleged that plaintiff, a boy fifteen years of age, agreed with the
The demurrer was properly sustained. The plaintiff was not a passenger. It has often been held that one does not become a passenger by the payment of money to the brakeman of a freight-train, the collection of fare not being within the real.or apparent scope of his authority. (McNamara v. Great Northern Ry. Co., 61 Minn. 296, 63 N. W. 726; Janny v. Great Northern Ry. Co., 63 id. 380, 65 N. W. 450; Texas & Pacific Ry. Co. v. Black, 87 Tex. 160, 27 S. W. 118; A. T. & S. F. Rld. Co. v. Johnson, 3 Okla. 41, 41 Pac. 641; Brevig v. Chicago, St. Paul, Minneapolis & Omaha Ry. Co., 64 Minn. 168, 66 N. W. 401.) Whether the rule is the same in the case of the brakemañ of a passenger-train or not, the plaintiff in this case was not a passenger, because, in the absence of specific allegations to the contrary, it must be presumed that the fact that he was told to ride on the car platform and
His minority does not affect the matter except so far as it is a mark of capacity. (Bess v. Railway Co., 62 Kan. 299, 62 Pac. 996.) A boy of fifteen, having ordinary intelligence for his age, would presumably understand, under the circumstances stated, that the directions given him were unusual and were intended to prevent his discovery by the person in charge of the train. It is true that the petition alleged that the plaintiff did not -know that he was doing wrong in making the arrangements referred to with the brakeman, and that he did not know that he was exposing himself to any great danger in following the instructions given him. But it was not alleged that he had not ordinary intelligence for his age, or that he lacked capacity to understand the nature of the transaction, or that he believed that the brakeman took the money in behalf of the company, or that he did not know that the reason he was told to ride on the platform and keep out of sight was in order that the conductor should not see him. As he was not a passenger but a trespasser, the company owed him no duty with regard to the construction of its semaphore, or otherwise, except to avoid wilful and wanton negligence.
The plaintiff was injured, not because he was riding on the platform, but because he got off the train while it was in motion, and on the other side of the car from the depot. It is not alleged that the brakeman told him to get off before the train stopped. The exact language of the petition in this regard is that the brakeman told the plaintiff “that, as the train pulled up at the different stopping-places between Great
The judgment is affirmed.