Marcum v. Missouri, Kansas & Texas Ry. Co.

ELLISON, J. — This action is for personal injury in which plaintiff obtained judgment in the trial court. The defendant, claiming that plaintiff had not made out a case, demurred to the evidence in his behalf and did not introduce any in defense. Plaintiff desired to go from Franklin Junction to Boonville and being informed that one of defendant’s freight trains carried passengers, boarded it as it was moving out. He was near the front end and fearing the speed would be too great when the rear reached him he boarded it from the front end by climbing up on the car, intending to walk back over the train to the caboose. He was discovered by one of defendant’s brakemen and told that the train did not carry passengers and ordered to get off. Plaintiff stated he thought it a local freight which carried passengers. They disputed for a time, plaintiff saying he would get off if the brakeman would slow up the train so he could do so. The brakeman swore at him, declared he should get off, and went back to the engine, got a “clinker hook” and came to him again demanding [220] that he get off and plaintiff again asked that the train he slowed up. Then the brakeman signalled to the engineer to slow up and when the train had begun to go slower plaintiff “started down the ladder of the car so when he got slowed up enough for me I could drop off.” Then the brakeman commenced throwing coal at him, striking him on the head and arm. He found he would have to drop off to prevent being hit again and did so by jumping and running with the train. Then the brakeman again threw a lump of coal, striking him on the ankle and injuring him. It is not necessary to go further into the manner of plaintiff’s injury, since the case turns on the question of the brakeman’s authority to act for defendant in putting him off the train. It has been determined in this State that merely showing that one was a brakeman on a train did not show he had authority to put persons off who were claimed not to be rightfully on — that the duty of a brakeman merely, did not include the charge of passengers or trespassers; and that in order to hold the company for the act of the brakeman it was necessary to show authority given to the brakeman in addition to his ordinary duty of attending on the train itself. [Farber v. Railway, 116 Mo. 81; Krueger v. Railway, 84 Mo. App. 358; Krueger v. Railway, 94 Mo. App. 458; Curtis v. Railway, 99 Mo. App. 502.] In this case matter was brought out in direct and ■cross-examination of witnesses as to the rules of the defendant concerning the duties of brakemen. We will assume that such rules showed that brakemen were prohibited from interfering with passengers or trespassers except under direction of the conductor. But there was evidence which tended to show that the de.fendant’s brakemen did customarily put persons off who were not entitled to be transported on freight trains and that this was done with- the knowledge of defendant’s officers. This was proper evidence and [221] when believed it will establish the brakeman’s authority, notwithstánding rules to the contrary. [Charlton v. Railway, 200 Mo. 413, 442; Farber v. Railway, 139 Mo. l. c. 278; Farber v. Railway, 116 Mo. l. c. 94; Krueger v. Railway, 94 Mo. App. 458, 463.] Complaint is made of an instruction authorizing the jury to allcnv exemplary damages. But the jury gave no heed to it as none were allowed. It was not error under the evidence to give it. So complaint is made of the refusal of defendant’s instruction directing the jury not to consider the act of the brakeman in throwing the coal and striking plaintiff after he had reached the ground from the car. The instruction was properly refused. [O’Brien v. Transit Co., 185 Mo. 263.] Defendant has submitted a full argument on the case made by plaintiff and after consideration of all the points made therein we feel that we would not be justified in interfering with this judgment, and it is accordingly affirmed. All concur.