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1 | Southern Kan. R. Co., Warren v.. 10 Staal v. Grand Street & Newtown

McGee v. Missouri Pacific R. Co...
Memphis & C. R. Co. v. Benson... 112
Merchants' Despatch Transp. Co.
v. Merriam....

Merriam, Merchants' Despatch
Transp. Co. ....

Michigan Cent. R. Co., Bacon v...
Minneapolis, L. & M. R., Grimes v.
Missouri Pac. R. Co. et al. v. Dun-
ham..
Missouri Pac. R. Co., Huhn v.....
Missouri Pacific R. Co., McGee v..
Missouri Pac. R. Co. v. Morrow...
Missouri Pac. R. Co. v. Texas &
Pacific R. Co...

Mobile, etc., R. Co. v. Stroud.
Monday, St. Louis, etc., R. Co. v..
Moore . Burlington, etc., R. Co..
Morrow, Missouri Pac. R. Co. v...
New York Cent., etc., R. Co.,
Avery ....

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357

78 St. Louis, etc., R. Co., Stoher v... 229 St. Louis, etc., R. Co. v. Monday.. 424 St. Louis, etc., R. Co. v. Williams. 555 St. Paul, etc., R. Co., County of

123

Todd v..

482

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530

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221

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520

Stoher e. St. Louis, etc., R. Co.... 229
Stookey, Illinois, etc., R. & Coal
Co. v..

479

76

Strand v. Chicago & West Michigan

443

R. Co....

54

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New York, etc., R. Co., Gaffney v. 265
Norfolk & Western Rr. Emmert 194
Norfolk & W. R. Co. v. Cottrell... 235
North London R. Co., Cutler .... 105
Northern Pac. R. Co., Kobe v..... 528
Northern Pac. R Co., Palmer v.. 544
Pacine Railway Commission, In re 598
Palmer v. Chicago, etc., R. Co.... 364
Palmer v. Northern Pac. R. Co.... 544
Patton Western. etc., R. Co 298
Pennsylvania Co. v. Dunlap
Pennsylvania Co. v. Whitcomb,
Admr...
Pennsylvania R. Co., Hawk v..... 268
People ex rel. Seip, Chicago, etc.,
R. Co. v.
Peterson v. Chicago, etc., R. Co...
Phillips, Lake Shore, etc., R. Co. v.
Pillsbury, Chicago & Alton R. Co. v.
Pinchin, Lake Shore, etc., R. Co. v.
Portland v. Union Mut. Life Ins.
Co.....

Thatcher e. Delaware & Hudson

76

637

Canal Co. et al..... Timins e. Chicago, etc., R. Co ... 541 Toner e. Chicago, etc., R. Co..... 320 Troustine et al., Illinois Cent. R. Co. v. 99 Troy, etc., R. Co., Chrystal r..... 411 Tuttle . Detroit, Grand Haven, etc., R. Co...

Union Mut. Life Ins. Co., Portland v

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461

149

Vermont State Grange v. Boston & Lowell R. Co. et al. .

695

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Wabash, etc., R. Co., Central Trust
Co. of New York v...
Wabash, etc., R. Co., Smith v... 331
Wabash, etc., R. Co. v. Hawk.... 306
Wabash, St. Louis & Pacific R. Co.
v. Farver.
134
Warren e. Southern Kan. R Co... 10
Washington & G. R. Co., Carpenter » 120
Wells, Chesapeake, O. & S. R. Co. v. 111
West Michigan R. Co., Strand ...
54
Western, etc., R. Co., Patton v... 298
Whitcomb, Admr., Pennsylvania
Co. v...

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Ritt's Admx. v. Louisville, etc.,
R. Co.....
Roddy, Tennessee, etc., R. Co. v..
San Francisco Liverpool, L. &
G Ins. Co...
Sedgwick . Illinois Cent. R. Co.. 207
Sherman . Delaware, etc., R. Co.. 15
Simms, Admr.,. South Carolina R. 199
Smith Wabash, etc., R. Co..... 331
South Carolina R. Co., Simms,
Admr., c.
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MCGEE

v.

MISSOURI PACIFIC R. Co., Appt.

(Advance Case, Missouri. June 6, 1887.)

Where plaintiff was directed by the agent of defendant, whose duty it was to direct passengers what trains they should enter, to take passage on a freight train, he became, upon his entrance, a passenger, notwithstanding, under the rules of the company, which were unknown to the plaintiff, passengers were not permitted to ride upon that train. Evidence that it was the custom and usage for defendant's freight trains to carry passengers was admissible.

Where the plaintiff had been received by the defendant as a passenger on its freight train, the same degree of care was due to him that defendant owed to passengers on its regular trains, except that, in taking the freight train, the plaintiff accepted and travelled on it, acquiescing in the usual incidents and conduct of a freight train managed by prudent and competent

men.

Where the defendant stopped its train at an unusual and unsafe place, before reaching which the station was announced, on a dark night when passengers in the caboose could not see the danger, and the conductor, on leaving the caboose with the light, might have seen it, his failure to warn the passengers of the dangerous character of the surroundings was gross negligence. The slowing up of the train as it approached the station, the sounding of the whistle, the announcement of the station, stopping the train, the act of the conductor and brakeman in leaving the caboose with the light, and the detachment of the engine to take water, must be construed as a direction to the passengers to alight then and there, and there was no negligence in the act of the plaintiff in acting on such direction.

The admission of evidence was proper to prove the usual stopping-place of freight trains at the station where an injury occurred, charged to have been occasioned by the stopping of the train at an unusual and dangerous place.

APPEAL from a judgment of the Monroe circuit court against the defendant upon a demurrer to the evidence in an action for injury resulting from negligence. Affirmed.

The facts are stated in the opinion.

Thos. J. Portis with Messrs. Adams & Bowles for appellant. J. H. Rodes and A. H. Waller for respondent.

NORTON, Ch. J.-This is an action to recover damages for injuries sustained by plaintiff, a passenger on one of defendant's

31 A. & E. R. Cas.-1

freight trains, in consequence of defendant's negligence, and the case is before us on defendant's appeal from a judgment obtained by plaintiff on the trial, and we are asked to reverse the judgment because of alleged error in the circuit court in refusing to give an instruction for defendant in the nature of a demurrer to the evidence, and in giving improper instructions for plaintiff.

FACTS.

The evidence on the part of plaintiff tends to establish the following facts, viz. that plaintiff purchased from defendant's ticket agent at Paris, Missouri, a round-trip ticket for himself and wife from Paris to Moberly and return; that, having gone to Moberly and wishing to return to Paris, he was directed by defendant's ticket agent at Moberly, with the acquiescence of the conductor, to take passage on a freight train standing on defendant's track some distance from the depot; that, the caboose having been pointed out, plaintiff and his wife, a Miss Carrer, and one Mason entered the caboose attached to said train; that the conductor of said train took up the tickets from plaintiff for himself and wife, and collected from him one fare in cash for Miss Carrer; that it was dark when the train left Moberly, and very dark when the train arrived at Paris, about 9.30 o'clock at night; so much so, according to the evidence of one of the witnesses, that you could not see your hand before you; that the train, on approaching Paris, was slowed up and the whistle sounded; that the conductor and hind brakeman came down from the lookout on the caboose, and the brakeman, in the hearing of all the passengers, announced Paris, and with the conductor went out of the caboose, taking the light with them, the train in the meantime coming to a stop, and the conductor and brakeman proceeding down the track to the depot, where the conductor registered his train; during which time and after the stop the engine was detached from the train for the purpose of taking water at the tank. The evidence tended further to show that the train, instead of being stopped at what was known as Fox Crossing, the usual stopping-place for north-bound freight trains, and which was known to plaintiff to be a safe place for alighting from trains, was stopped some distance before reaching said crossing, with the caboose standing on the east end of a high trestle, put in a deep ravine, where heavy timbers had been dropped in against piling, making a square wall 30 or 40 feet long, and 9 feet high, the bank being steep. From the rail to the edge of the embankment was about 5 feet, and the steps of the caboose extended about 2 feet from the rail, so that a person in stepping down from the caboose would step within a foot of the edge of the embankment. The evidence tends further to show that after the train stopped, and after the action of the conductor and brakeman in leaving the caboose and going down to the depot, and the detachment of the engine from the train, that plaintiff and the other passengers alighted from the caboose, and that plaintiff having

alighted, in assisting one of the lady passengers to alight, fell over the embankment, receiving the injury for which he sues, consisting of a broken leg. The evidence, while it also tended to show that plaintiff had long been a resident of Paris, was acquainted and knew of the embankment by having passed over and seen it previous to the accident, did not tend to show that he knew the caboose had stopped there when he got off. The evidence also tended to show that the freight train on which plaintiff took passage was an extra, which, under the rules of the company, was not permitted to carry passengers, but did not tend to show plaintiff had knowledge thereof.

The above facts which the evidence tended to establish make out a case which it was proper to submit to the jury.

Notwithstanding, under the rules of the company (which were unknown to plaintiff), passengers were not permitted to ride on the train in question, yet plaintiff when directed by the PASSENGER ON agents of defendant,-whose duty it was to direct pas

FREIGHTS.

sengers what trains they should enter to take passage on this train, became a passenger. Marshall v. St. Louis, K. C. & N. R. Co., 78 Mo. 616; Logan v. Hannibal & St. J. R. Co., 77 Mo. 668; Hicks v. Hannibal & St. J. R. Co., 68 Mo. 338; 2 Wood, R. R. p. 1413, $355.

At pages 1044 and 1045 of the author last cited it is said: "A person who, without knowing that it is against the rules of the company for passengers to ride on a freight train, if he pays his fare and is received as a passenger by the conductor, may be entitled to the rights of a passenger; and such also may be the case where notwithstanding the rules, it is shown that passengers have been habitually carried upon such trains; but where a person, knowing the rules, gets upon a freight train, even with the assent of the conductor, and pays no fare, he cannot be regarded as a passenger." In the case before us there was abundant evidence showing that passengers were habitually carried upon defendant's freight trains.

Plaintiff having been received by defendant as a passenger on its freight train, the same degree of care was due to him that defendant owed to passengers on its regular trains, except that plaintiff, in taking the freight train, accepted and travelled on it acquiescing in the usual incidents and conduct of a freight train managed by prudent and competent men. Indianapolis & St. L. R. Co. v. Horst, 93 U. S. 291.

In Thompson on Carriers of Passengers, p. 234, § 20, it is said: The company is held to as strict an accountability for the negligence of its employees in the management of a train COMPANY'S with a caboose attached, in which passengers are seated, COUNTABILITY. as the law imposes in the transportation of passengers on trains

AC

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