CORCORAN v. CONCORD & M. R. CO.

CORCORAN v. CONCORD & M. R. CO. (Circuit Court of Appeals, First Circuit. July 1, 1893.) No. 52. CARRIERS OF PASSENGERS — TRESPASSER— EJECTION FROM TRAIN — EVIDENCE, The mere fact that a trespasser riding upon a freight train is thrown from the top of a car while the same is in rapid motion, by a person carrying a lantern, whom he supposes to be a brakeman, is not sufficient, to show a liability on the company’s part for resulting injuries, when there is no evidence as to the alleged brakeman’s authority. In Error to the Circuit Court of Llie United States for the District of Massachusetts. At Law. Action by James Corcoran against the Concord & Montreal Railroad Company to recover damages for personal injuries caused by being thrown from the top of a freight train while in motion. The action was originally brought in the superior court of Middlesex county, and was removed to this court by defendant. At the close of plain! ill’s evidence on the question of defendant’s liability, the court directed a verdict for defendant, and judgment was entered accordingly. Plaintiff brings error. Affirmed. Plaintiff’s evidence showed that he was riding on top of a freight car without having paid any fare, and that he was ordered to get off by a person canwing a lantern, whom he assumed to be a brakeman; that plaintiff said he would get off if the train were stopped; and that thereupon the alleged brakeman seized him, and threw him off while the train was in rapid motion, thus causing the injuries complained of. No evidence was offered as to the scope of the alleged brakeman’s authority. Jerome F. Manning, for plaintiff in error. Josiah H. Benton, Jr., for defendant in error. Before COLT and PUTNAM, Circuit Judges, and NELSON, District Judge. [MAJORITY — PER CURIAM.] PER CURIAM. The court is of the opinion that plaintiff should have offered some evidence showing- the scope of the alleged brakeman’s authority. He failed, to do so, and for that reason it is ordered: Judgment of circuit court affirmed.