Слике страница
PDF
ePub

ing train, and, because of being compelled to so get off, the trespasser is killed, the railroad company is liable, though the employé's act was wanton and malicious.-Pierce v. Railroad Co., 32 S. E. 399, 124 N. C. 83, 44 L. R. A. 316.

[n] (Pa. Sup. 1879) Where the conductor of a railroad train, acting in the line of his duty, ejects from the platform of a car a person who has no right thereon, the company is liable if he does it in a careless, negligent, or reckless manner, but not if he maliciously ejects him therefrom.—Pennsylvania Co. v. Toomey, 91 Pa. 256.

[o] (Tex. Civ. App. 1900) Where one of defendant's brakemen, who had authority to eject trespassers from the train, while it was in rapid motion willfully, forcibly, and violently pushed and threw plaintiff from the platform of a passenger coach on which he was stealing a ride, defendant is liable for the injuries caused thereby, since, though plaintiff was a trespasser, defendant's employé in ejecting him should not do so in such manner as to willfully or causelessly injure him.-Railway Co. v. Lester, 59 S. W. 946, 24 Tex. Civ. App. 467.

3. Place of Ejection.

[a] (Ky. App. 1901) Where the servants in charge of a freight train ejected a trespasser in a drunken and helpless condition in a deep cut on a dark night, and he was run over and killed by a train which followed, as the servants ejecting him had reason to believe that he would be, the railroad company was liable for his death, though the place at which he was ejected was the place at which he entered the train.-Fagg's Adm'r v. Railroad Co., 63 S. W. 580, 54 L. R. A. 919. [b] (Ky. Super. Ct. 1892) A trespasser on a freight train may be put off by the railroad company at any point on its road, using no unnecessary violence.-Railroad Co. v. Moss, 13 Ky. Law Rep. 684.

[c] (Ky. Super. Ct. 1892) Servants in charge of a railroad train, in putting a person off the train, even though a trespasser, must see that he has a safe place to alight; and if he is compelled to leave the train at a place where it is necessarily dangerous to do so, and is injured, the company is liable for the injuries received, though its servants. by reason of the darkness, may not have been aware of the danger.-Railroad Co. v. Gatewood, 14 Ky. Law Rep. 108.

[d] (Ky. Super. Ct. 1892) Where a trespasser is ejected from a train at a place where it is dangerous for him to alight, it is no defense that the trespasser was drunk, and thus contributed to his injury; as that fact made it the more incumbent on the servants of the company to see that he had a safe place to leave the train.-Railroad Co. v. Gatewood, 14 Ky. Law Rep. 108. [e] (La. Sup. 1898) A trespasser on a railroad train should not be ejected at night at a perilous place for alighting.-Young v. Railway Co., 25 South. 69, 51 La. Ann. 295.

[f] (Minn. Sup. 1885) A person who enters a railway train and refuses to pay his fare when lawfully demanded is a trespasser, not a passenger, and the carrier is not required at common law to put him off at a station or usual stopping place, but may expel him at any other place, provided care is taken not to expose him to serious injury or danger.-Wyman v. Railroad, Co., 25 N. W. 349, 34 Minn. 210.

4. Manner of Ejection.

[a] (U. S. C. C. A., Ga., 1898) Where a person stealing a ride on a train continues to get on after being put off, it does not entitle the railroad company to use increased force. especially where the trespasser is a child 10 years old.-Railway Co. v. Shaw, 31 C. C. A. 70, 86 Fed. 865.

[b] (Ill. Sup. 1889) The fact that the person ejected by the conductor from a horse car was a mere trespasser makes no difference, if the conductor failed to act in a prudent manner, with a due regard for his safety, in ejecting him, in consequence of which failure he was injured.—Railway Co. v. Gastka, 21 N. E. 522, 128 Ill. 613, 4 L. R. A. 481, affirming (App. 1888) 27 Ill. App. 518.

[c] (Ind. Sup. 1872) Even when the relation of carrier and passenger does not exist, a railroad company is bound to use care in putting a person off its cars.-Railway Co. v. Powell, 40 Ind. 37.

[d] (Ind. App. 1895) Though a carrier has the right to expel a trespasser from its train, it will be liable if its servant in so doing uses unnecessary force and violence.-Railroad Co. v. Matthews, 41 N. E. 842, 13 Ind. App. 355.

[e] (Ky. App. 1893) A brakeman has implied authority to remove from his train, in a lawful manner, a trespasser found on a car platform; and where he uses unnecessary force the carrier is liable.-Smith v. Railroad Co., 23 S. W. 652, 95 Ky. 11, 22 L. R. A. 72.

[f] (Ky. App. 1901) As the master is liable for the acts of his servant within the apparent scope of the business intrusted to him, instructions by a railroad company to its brakeman not to expel trespassers from trains, but to report the facts to the conductor, will not relieve the company from liability for any unnecessary violence used by a brakeman in ejecting a trespasser, and this rule applies to freight trains as well as to passenger trains.Railroad Co. v. West, 60 S. W. 290.

[g] (La. Sup. 1898) Greater care must be used in ejecting a crippled person, though a trespasser, from a train, than it would be necessary to use in case of a person in good physical condition.-Young v. Railw Co., 25 South. 69, 51 La. Ann. 295.

[h] (Ohio C. C. 1897) Where the plaintiff was merely trespassing on defendant's train, with no criminal intent, his presence there does not forfeit him his legal rights, and while defendant's servants may remove him, using necessary force to do so, the law still shields him from violent, unnecessary, and malicious assault at their hands, and he is entitled to recover if he is thus injured in their endeavors to remove him.-Railroad Co. v. Boyer, 18 Ohio Cir. Ct. R. 327, 10 O. C. D. 199.

[i] (Pa. Sup. 1886) In ejecting from a railway car a trespasser, care must be taken that it be not done in such manner as to endanger his life or limbs. Where such care is not taken, it is negligence, for which the company is answerable.-Biddle v. Railway Co., 4 Atl. 485, 112 Pa. 551.

[j] (Pa. Sup. 1893) Even if plaintiff was a trespasser, the driver was not justified in removing her from the car with utter disregard of her personal safety.-Barre v. Railway Co., 26 Atl. 99, 155 Pa. 170.

[k] (S. C. Sup. 1892) A person who enters a passenger coach as a passenger, and who, on demand by the conductor, refuses to pay his legal fare, becomes a trespasser on the train, and is considered a trespasser ab initio. as if his entry had been unlawful; and for his ejection force may be used, in proportion to his resistance.-Moore v. Railroad Co., 16 S. E. 781, 38 S. C. 1. [1] (Tex. Sup. 1899) Where one in charge of an engine had absolute possession of its machinery, the jury were authorized to find that he had authority to eject a trespasser from the footboard, thereby making the railroad liable for excessive force used in such ejection.-Railway Co. v. Zantzinger, 53 S. W. 379, 93 Tex. 64, 47 L. R. A. 282, 77 Am. St. Rep. 829, affirming judgment (Civ. App. 1899) 49 S. W. 677.

[m] (Tex. Civ. App. 1900) A railroad company is not relieved from liability to conduct its business so as not to unnecessarily or causelessly injure trespassers whom it is ejecting from its trains.-Railway Co. v. Black, 57 S. W. 330, 23 Tex. Civ. App. 119.

5.

[ocr errors]

Failure to Stop Train.

[a] (Ga. Sup. 1898) The forcible expulsion from a freight train running 25 miles an hour, by a brakeman, of a trespasser, resulting in an injury to the latter, gives him a right of action against the company.-Railway Co. v. Godkin, 30 S. E. 378, 104 Ga. 655, 69 Am. St. Rep. 187.

[b] (Ill. Sup. 1898) One who, on purchasing a ticket, was informed by the station agent that it entitled him to ride on a freight train, which, under the company's regulations, was not allowed to carry passengers, was not, on entering such train, a trespasser, whom the trainmen could forcibly eject after the train had started, without advising him of the regulation, and giving him an opportunity to alight.-Railroad Co. v. Davenport, 52 N. E. 266, 177 Ill. 110, affirming judgment (App. 1898) 75 Ill. App. 579.

[c] (Ky. App. 1896) A trespasser, who was injured while trying to climb upon a car in a slowly-moving freight train, which he was prevented from doing by a brakeman, cannot recover damages from the railroad company,

unless the injury was caused by the use of unnecessary force by the brakeman.-Railroad Co. v. Bernard, 37 S. W. 841.

[d] (Ky. Super. Ct. 1886) A carrier may eject from its train one who has no right to be there, but before putting him off must so reduce the speed of the train as to insure his safety, or must take him to the next stopping place.-Railroad Co. v. Ferrell, 7 Ky. Law Rep. 607.

[e] (Mo. Sup. 1897) Where a brakeman, acting within the scope of his authority, negligently ordered a trespasser to alight from a moving train, and the trespasser was injured while obeying the order, the company is liable, though no actual force was used.-Farber v. Railway Co., 40 S. W. 932, 139 Mo. 272.

[f] (Mo. App. 1900) A trespasser stealing a ride may be removed from a train, but cannot be compelled to leap from a train running at such speed as to make the jump hazardous; but an instruction authorizing a recovery if plaintiff was compelled to leave the train while in motion is erroneous, since the motion may be such as not to make the alighting dangerous.—Krueger v. Railway Co., 84 Mo. App. 358.

[g] (N. C. Sup. 1901) Plaintiff was stealing a ride beneath a freight car, and while the train was moving about five miles an hour the brakeman threw a rock at him and cursed him and told him to get off, and the flagman said, "Give it to him," and plaintiff was injured by jumping off. Held, that the company was liable for the wrongful manner in which the ejection was accomplished.-Cook v. Railway Co., 38 S. E. 925, 128 N. C. 333.

[h] (Tex. Civ. App. 1895) A railroad company is liable in damages to a trespasser who was ejected from a moving train by the porter, and seriously injured, when greater force than necessary was used.-Railway Co. v. Huffman, 32 S. W. 30.

[i] (Va. Sup. Ct. App. 1896) A trespasser on a train must be given a reasonable opportunity to alight without danger, and may recover for injuries received through being forced to leave the train, while it is in motion, by employés acting within the scope of their employment.-Railroad Co. v. Anderson, 25 S. E. 947, 93 Va. 650.

[j] (Wis. Sup. 1900) A railway company may require a willful trespasser on one of its moving trains to get off without stopping the train, its speed not being so great that an injury to him would be reasonably expected to occur.-Bolin v. Railway Co., 84 N. W. 446, 108 Wis. 333, 81 Am. St. Rep.

911.

6. Contributory Negligence of Trespasser.

[a] (La. Sup. 1901) Where a railway company's brakeman pelts a trespasser with rocks in order to drive him from the car, and in attempting to escape he is injured, his act in stealing the ride is not contributory negligence, so as to relieve the company from damages for the injury received.— Dorsey v. Railway Co., 29 South. 177, 104 La. 478, 52 L. R. A. 92.

[b] (Tex. Sup. 1898) An engineer of a switch engine threw hot water upon a trespasser riding upon the footboard, causing him to jump off and fall beneath the wheels. Held, that the act of the engineer was willful assault, and therefore the negligence of the trespasser in placing himself in such a position was not a contributing cause of the injury.-Railway Co. v. Zantzinger, 48 S. W. 563, 92 Tex. 365, 44 L. R. A. 553, 71 Am. St. Rep. 859.

[c] (Tex. Sup. 1898) His act in jumping from the engine, being induced by a willful injury, was not negligence.-Railway Co. v. Zantzinger, 48 S. W. 563, 92 Tex. 365, 44 L. R. A. 553, 71 Am. St. Rep. 859.

[d] (Wis. Sup. 1900) Where a trainman commands a willful trespasser, riding on the bumpers of a freight train moving at the rate of four or five miles an hour, and who such trainman has reasonable ground to believe is skilled in jumping on and off trains under the existing circumstances, to get off, no means reasonably calculated to cause such trespasser to lose his self-control being used to enforce the command, an intention to injure such trespasser, necessary to a willful injury, cannot reasonably be inferred therefrom, so as to preclude a defense of contributory negligence.-Bolin v. Railway Co., 84 N. W. 446, 108 Wis. 333, 81 Am. St. Rep. 911.

7. Actions for Wrongful Ejection.

[a] (Ill. App. 1900) Deceased, with three other boys, got on the footboard of an engine in defendant's yard. The engineer, on discovering the boys and while the engine was moving, started towards them. The three boys testified that he ordered them to get off, and that he kicked one of them in the back, and kicked deceased with such force that he fell off and was run over by the engine. The engineer denied that he ordered the boys off, or that he kicked them. Held that, in a suit against the railroad company for the death. a finding for plaintiff will not be disturbed, since, if the boys' testimony was believed by the jury, the company was liable.—Railway Co. v. Hendrian, 92 Ill. App. 462, judgment affirmed (Sup. 1901) 60 N. E. 902, 190 Ill. 501.

[b] (N. C. Sup. 1899) In an action for death of a trespasser on a train by wrongful act of defendant's servant, the proper issues are whether plaintiff's intestate was killed by defendant's negligence, whether he contributed to his death by his own negligence, and whether defendant by the exercise of reasonable care and prudence could have avoided the accident notwithstanding intestate's contributory negligence.-Pierce v. Railroad Co., 32 S. E. 399, 124 N. C. 83, 44 L. R. A. 316.

8.

Pleading.

[a] (Ala. Sup. 1900) Where the complaint in an action against a railroad company for damages for injuries to a trespasser by being shoved from a moving freight train alleges that the plaintiff was wantonly and recklessly or intentionally injured by defendant through its servant or agent, it states a cause of action against defendant.-Railroad Co. v. Robinson, 28 South. 28. 125 Ala. 483.

[b] (Ala. Sup. 1900) The word "recklessly," when used conjunctively with "wantonly," means something more than "negligently," and assignments of demurrer on the idea that the word "recklessly," used conjunctively with "wantonly," in a complaint for personal injuries inflicted on plaintiff in removing him from a freight train as a trespasser, means "negligently," are without merit.-Railroad Co. v. Robinson, 28 South. 28, 125 Ala. 483.

[c] (Tex. Civ. App. 1900) Where plaintiff alleged that defendant's employés negligently and recklessly compelled her son to jump from its train while in motion, and that the boy jumped, alarmed by their threats, a demurrer on the ground that the son was a trespasser was properly overruled, since the allegations were sufficient to charge willful negligence, and this, if sustained, would have entitled plaintiff to recover, though her son was a trespasser.-House v. Blum, 56 S. W. 82.

[d] (Tex. Civ. App. 1900) Where plaintiff, a trespasser on a freight train, was thrown therefrom by the brakeman, a defense that plaintiff knew of a rule forbidding him to ride, and that the brakeman was acting for himself in taking plaintiff aboard, and also in ejecting him from the train, cannot be considered, because not specially pleaded.-Railway Co. v. Black, 57 S. W. 330, 23 Tex. Civ. App. 119.

9.

Evidence.

[a] (Ill. App. 1898) A trespasser on a freight train, suing for injuries caused by his expulsion by a brakeman, has the burden of showing that the brakeman had authority to expel him.-Railway Co. v. Brackman, 78 Ill. App.

141.

[b] (Mo. Sup. 1897) A conductor was permitted without objection to testify that after an accident to plaintiff's son, a trespasser, he stopped the train, and took the boy into the caboose, and that on being asked how he came to be injured the boy answered that the brakeman put him off, and in trying to get on he got hurt. Held that, though incompetent as against plaintiff, the evidence would support an instruction that, if the boy was injured while attempting to board the train, there could be no recovery.-Farber v. Railway Co., 40 S. W. 932, 139 Mo. 272.

[c] (Mo. App. 1900) Expressions of employés not connected with the removal of a trespasser from the train are inadmissible on the trial to recover damages for such removal.-Krueger v. Railway Co., 84 Mo. App. 358.

[d] (Mo. App. 1900) A brakeman cannot be asked whether certain acts

are in the line of his duties, but he could state what he was directed to do, or that he had done certain acts, and how long he had been accustomed to do them.-Krueger v. Railway Co., 84 Mo. App. 358.

[e] (N. H. Sup. 1895) There was evidence that the conductor, on ordering plaintiff to leave the car, almost immediately ejected, or attempted to eject, him, slapped him in the face, and struck him so hard that finger prints were on his face a short time thereafter. Held, that the evidence was competent on the questions whether the conductor ejected, or attempted to eject, plaintiff without giving him a sufficient opportunity to leave, or used more force than was necessary.-Rowell v. Railroad Co., 44 Atl. 488, 68, N. H. 358.

[f] (Tex. Sup. 1901) Where petition, in an action for injuries to a trespasser on a train, alleged that the brakeman of the train was authorized to eject trespassers, and acted within the scope of his authority in attempting to expel plaintiff, evidence was admissible to prove that rules of the company forbidding brakemen to eject trespassers were mere pretexts, and that in practice brakemen were empowered by defendant to exercise such authority. -Railway Co. v. Rutherford, 62 S. W. 1056, 94 Tex. 518, affirming judgment (Civ. App. 1901) 62 S. W. 1069.

[g] (Va. Sup. Ct. App. 1896) In an action against a railroad company, it appeared that plaintiff got on a box car to steal a ride. He testified: That he got on between two box cars, and was standing between the cars, when a man said, "What are you doing?" That he just turned his back to get off, "and he kicked me and knocked me off." His testimony placed the man who kicked him off on top of the car, and he testified that the man had nothing in his hands: "It felt like a kick;" "I guess it was a kick." The testimony showed that from the top of the car to plaintiff's shoulder, where he said he was kicked, was 34 feet, and that it was impossible for a man to stand on top of the car and kick down 34 feet, especially when the cars were in motion. Held, that a verdict for plaintiff was contrary to the law and evidence.-Railroad Co. v. Anderson, 25 S. E. 947, 93 Va. 650.

10.

Trial.

[a] (Kan. Sup. 1896) Whether a train from which a trespasser was ejected was running too fast for his safe ejection is a question of fact for the jury. -Railway Co. v. Mitchell, 43 Pac. 244, 56 Kan. 324.

[b] (Ky. App. 1899) Where the evidence tended to show that a brakeman, immediately after frightening plaintiff, a trespasser, from the train, pushed him against the moving car so that his feet were crushed under the wheels, it was error to instruct the jury that there could be no recovery unless plaintiff was still holding to the car when the brakeman seized him; the whole being a continuous transaction, and the removal of trespassers from the train being within the apparent scope of the brakeman's duty.-Elliot v. Railroad Co., 52 S. W. 833.

[c] (Ky. App. 1901) Two men entered a freight car at B. for the purpose of stealing a ride to a distant station. After passing one station, the train stopped at a place at which it was not accustomed to stop, and several hours thereafter the two men were found at that place, near the track, unconscious from injuries which seemed to have been inflicted by some blunt or heavy instrument. It was the duty of the servants in charge of the train to eject trespassers on discovering their presence. In an action against the railroad company to recover damages for the death of one of the men, held, that a peremptory instruction for defendant was proper, as the jury could not infer that the men were ejected from the train, and that unnecessary force was used in ejecting them.-Morris' Adm'r v. Railroad Co., 61 S. W. 41.

[d] (Ky. Super. Ct. 1886) In an action by a trespasser against a carrier for being ejected, it is error to instruct the jury that they may find for plaintiff if they believe defendant's employés used force in ejecting plaintiff from its railroad car "when such force was not necessary," as plaintiff was there without right, there being no evidence that he would have left the car without force.-Railroad Co. v. Ferrell, 7 Ky. Law Rep. 607.

[e] (Mo. Sup. 1897) Where the brakeman who ejected plaintiff, a trespasser, and other brakemen testified that it was the brakeman's duty to put

« ПретходнаНастави »