57 Kan. 185 | Kan. | 1896
Charles R. Cooper, who was a little over 11 years of age, had his foot crashed while climbing between the cars of a freight train which was standing upon the crossing of National Avenue — a street in the city of Fort Scott. The Marmaton River runs through Fort Scott, and the portion of the city north of the River, and called North Fort Scott, contains about 1,000 inhabitants. The only street upon which there is a bridge, and which connects North Fort Scott with the rest of the city, is National Avenue ; and near the point where it crosses the railroad is the railroad station. In 1882, a local freight-train was
Another contention is, that the petition is insufficient in failing to state that the action was prosecuted by the next friend for the benefit of the minor. It is said that the allegations are, in form, those of the minor himself; and that no reference is made to the next friend in the petition except in the title. The objection is technical and without merit. The cause of action, if any, accrued in favor of the minor for whose benefit the next friend acted. In form, the averments of the petition are those of the plaintiff, the real party in interest, and it shows clearly that the action is brought through the next friend and in favor of the minor.
Complaint is made of the admission of testimony to the effect that the Railroad Company had previously obstructed the street by leaving its trains standing across the same, and that persons had frequently passed between the cars, over and under the couplings. These circumstances may have influenced the infant in attempting to climb between the cars and in assuming the risk and peril of the undertaking. The testimony might also be received as tending to show that those in charge of the train were acquainted with the practice, and were, therefore, required to exercise a higher degree of care than if they had been unaware of such practice. It was necessary, however, to limit it to a brief time before the occurrence in question.
The effort to climb over the. couplings of cars in a train to which a locomotive was attached was an exceedingly reckless act, even for a boy 11 years of age. The Company had no right to unnecessarily obstruct a public street. The moving of cars across the street, or a temporary stopping of a train upon the street in the ordinary course of business, is permissible; but there is testimony that this train was frequently allowed to stand across the street for a needless and unreasonable length of time. The obstruction of the street, however reprehensible it may have been, is little excuse, for a person who possesses discretion and capacity, to climb through between the freight cars of a train to which a locomotive is attached, steamed up and ready to move. The plaintiff, although an infant, was required to exercise due care, to be measured by his age, intelligence, and the facts surrounding him. But, granting that he was negligent, the Company could not escape liability for wantonly and willfully injuring him. The case was tried upon the theory that the plaintiff below was himself negligent in attempting to cross between the cars, and, hence, the trial court instructed the jury that he could not recover unless the injury was willfully or wantonly inflicted. This ruling was accepted by the parties as a correct statement of the law, and will be treated here as the law of the case. The contention of the Company is that the testimony does not sustain
For these reasons the judgment will be reversed,, and the cause remanded for another trial.