Bowdoin v. Southern Pacific Co.

WILBUR, J.

Defendant appeals from a judgment after verdict for one thousand dollars in an action brought by plaintiff to recover for the death of her son, Lindsay, fifteen years of age, alleged to have been caused by the negligent and willful misconduct of a brakeman of the defendant, in ejecting him from an iron ladder on the side of a freight-car upon which he was riding without permission, by reason

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whereof he fell in front of a passing switch-engine and was billed.

Cecil Sanders, a companion of deceased, testified that he saw the brakeman climb down the ladder and smash decedent’s fingers; that he heard the brakeman say something to him but could not distinguish what it was; that he “stomped where Lindsay was holding on to the ladder. . . . Lindsay fell off, he seemed to light on his left foot, . . . seemed to lose his balance, and fell in front of the east-bound switch-engine and was run over.” In its answer the defendant denied negligence and alleged contributory negligence. The brakeman and others in charge of the train testified, denying all knowledge of the presence of the deceased, and any knowledge of the means by which he was thrown in front of the switch-engine. The jury were instructed fully on the subject of negligence and no complaint is made of such instructions. Defendant, however, complains of the following instruction, given at plaintiff’s request.

“If you find that the deceased in this case was a boy of fifteen years of age, you are instructed that he would not be expected to use that degree of judgment and discretion which would be expected and required of an adult, and if you find that from the commands or acts, if any, of the brakeman in ' charge of the train, the boy had reason to believe that force would be used, or if you find that force was used to eject him from the train, and even if you find that the boy jumped from the train by reason of such belief, he cannot under such circumstances be charged with contributory negligence for not having waited for a more safe place to alight.”

It is claimed that this instruction is erroneous for the reason that it is based upon a theory not involved in the evidence. If we accept the testimony on behalf of plaintiff as true, the hold of decedent was released by reason of the fact that his fingers were stamped upon, or that he lost his hold, or let go his hold, because the brakeman was stamping near his fingers and threatening to stamp on his fingers, it could not be said that the deceased was guilty of contributory negligence in loosening his hold under such circumstances. There is no evidence that he jumped. Under the circumstances he could not be charged with negligence in not