Plaintiff is the mother of a boy who was killed in the state of Kansas by falling from one of defendant’s freight cars. Her claim is that her son’s death was the result of the negligence of defendant’s servants in switching cars. The action is founded on the statutes of Kansas. She recovered .judgment in the circuit court.
The following statement of facts in the case is taken substantially from that made by plaintiff: The Boyd Construction Company had its employees engaged in unloading gravel from defendant’s cars standing on a switch, and it had been so engaged for several months prior to the 27th of August, 1910, the day of the accident. Plaintiff testified that her boy was thirteen years old and small for his age. It appears that he was employed by the Boyd Company to carry drinking water to the men unloading the cars. He carried this from a nearby well, in a tin bucket, the evidence tending to show that he would climb up in the car where the men were unloading and pass water around to them in a cup, and he had been doing this for perhaps two months. The cars were open, but with sides and ends four feet ten inches high. By some arrangement a train crew in defendant’s employ, together with one of defendant’s engines, would switch out cars as they were unloaded. The present controversy has particular concern with three cars, two had been unloaded, and one partly, out of the center. There were some other cars also standing with these. The deceased boy had got up in the partly unloaded car and had handed water to the three or four men there at work, but did not then get off the car. About ten minutes after the water was served, one of defendant’s engines was brought in and at*513tached to the standing cars with the purpose of switching the two empty cars at the other end. This was done by what is called a “kicking- or flying switch,” that is to say, the cars to be separated are uncoupled, and the engine put to a considerable speed, when it will be brought to a stop and the separate cars will then run on to where they may be switched and stopped. The charge is that stopping the engine with the attached cars, the one partly unloaded being one of them, was so negligently sudden that it caused an extraordinary jerk which threw deceased over the end of the car onto the track, where he was run over and killed. If the evidence in plaintiff’s behalf is to be believed, we think there was enough shown to keep the case from falling within that of Wencker v. Railway Co., 169 Mo. 592.
As before stated, the sidings of the car were four feet ten inches higher than the floor. The gravel in the end of the car came up to within eighteen inches of the top, and plaintiff’s theory is, that deceased, while riding during this switching, or, at least, at about the time he was thrown out, was kneeling down, or, as expressed by plaintiff’s witnesses, was standing, on his knees at the end of the car, not up against the end, but near the corner about eighteen inches from the end and two feet from the side, and that when the violent jerk' came it had the effect of throwing bim over the end onto the track. To have stood on top of the gravel at the end of the car with nothing to hold to,.while the crew were making the switch as just described, would have been negligence on the part of the deceased. [Hedrick v. Ry. Co., 195 Mo. 104; Gabriel v. Ry. Co., 135 Mo. App. 222; Hawk v. Ry. Co., 130 Mo. App. 658.] But if he was down on his knees, it was a position reasonably safe and therefore, as claimed and insisted upon by plaintiff, he was exercising all proper care to avoid falling off. This theory *514of plaintiff’s brings np the question whether such a position in the car was not so secure that deceased could not have been thrown from it by an extraordinary jerk caused by a sudden stop.
The boy was thirteen years old, but small for his age — was only four feet and three inches tall. He was kneeling on the gravel, which, allowing for ordinary proportionate length of the leg below the knee, would make him, in that position, about thirty-five inches high. Then allowing for eighteen inches of sideboard which stood above the gravel upon which he was kneeling, we have only about seventeen inches —his head and part of his shoulders — above the car, and, so some of the witnesses stated, only his head and shoulders could be seen. In such a position he could not have been thrown over the end of the car. He could have been thrown against it, striking his neck, face or head, but there is no reason upon which to base the statement that he could be thrown over it onto the track below. Those witnesses who stated he was standing up on the gravel at the end of the car, though their statement is denied by plaintiff, must have been correct. The accident could not have happened as insisted by plaintiff.
But as the state of the evidence in the record is such that it leaves us in doubt as to whether all of the facts have been brought out as to the deceased’s position, we conclude not to reverse the judgment outright, but to remand the cause for another trial.
All concur.