72 Mo. 62 | Mo. | 1880
As the case must be retried, it will be proper to make some observations upon the law of the case as presented by the record now before us. The evidence taken at the trial is preserved in the bill of exceptions in the following form: The plaintiff introduced evidence tending to prove that the plaintiff got on a freight train of defendant at
Defendant offered evidence tending to show that the conductor had exclusive control of the train and all persons on it; that plaintiff never paid any fare; that he secreted himself when he got on the train; that no employee of defendant had any authority from defendant to carry passengers unless they paid their fare, and never to permit any person to ride on any part of their train except in the
It is well settled that to make the master liable for the tortious act of his servant the act causing injury must have been in the line of the servant’s duty and within the scope of his employment. Here the testimony shows that the brakeman had no control whatever over any person on the train and no concern with them. The testimony is,
If by reason of an accident to the train the plaintiff had been injured while simply riding on a freight car, the defendant would, on the record before us, be held liable, as it does not appear that the regulations of the company prohibiting passengers from riding elsewhere than in the caboose, were conspicuously posted as required by law. The statute on this subject is as follows: “ In case any passenger on any railroad shall be injured while on the platform of a car, or in any baggage, wood or freight car> in violation of the printed regulations of the company, posted up at the time, in a conspicuous place inside of its passenger cars then in the train, such company shall not be liable for the injury; provided, said company, at the