158 N.W. 452 | S.D. | 1916
Lead Opinion
Appellant urges many other assignments of error, all of which hav-e been carefully -examined, and we are of the opinion that no- prejudicial -error exists therein.
The judgment and order appeal from are affirmed.
Dissenting Opinion
(dissenting). After a careful examination of the record in this case, I am unable to- agree with the opinion of the majority of the court. I believe the accident that caused the injury to plaintiff’s car was the result of the negligence of the driver of the car. Defendant’s railroad tracks, at the place.of the accident, run in an easterly and westerly direction. Plaintiff’s car approached the tracks from the north. The driver testified that, at the time he approached the tracks, he knew there was a train due to pass, that point from the west at about that time; that, before he reached the crossing, he- tried to look up the track to the west, but that a view of the tracks in that direction was 'prevented-by obstacles of various binds; that there was a side track some 40 or 50 feet north of the main track, and that, as he approached this side track, he reduced the speed of the ear to'less than xo miles per hour; that, as he crossed the side track, he released the clutch of his engine, thinking the car had sufficient momentum to carry it across the -main track. It became apparent to him-, however, about the time the- car reached the main track, that the momentum of the car was not sufficient to carry it over, and he threw in his clutch again but found that ■his engine had “died,” and the car stopped directly over the main track. From the time the car reached the side track, the headlight of defendant’s locomotive (approaching from the west) was in plain sight, but the -driver did not see it nor look in that -direction until after the car had stopped. In his failure to see the approaching locomotive and in releasing the clutch of his engine while in plain sight of said locomotive, I believe he was guilty of inexcusable negligence. After reaching the side track and after he could, by the exercise of the slightest degree of care, have seen the approaching locomotive, he had time either to have stopped his car before it reached the main track and permitted the train to pass ahead of him or he -could, by applying the power of his engine, have -crossed the main- track and been out of the ’ way of danger before the locomotive could have reached the crossing.
There was a -conflict in the testimony as to> the distance the locomotive was from the crossing when the car stopped. An eyewitness fixed the distance at about i,400 feet. The engineer who was driving the locomotive fixed it at 690 feet. It is im
“The engineman would not be expected to, assume, at the very first instant of observation, that the automobile would stop on the track, or that something was the matter .with it, so that it could not be cranked and driven or pushed off the track.”
In that case, the first thing the driver did when his car stopped was to get out and try to, crank his engine. This should have been some indication to the engineer, if he were at all familiar with the operation of automobiles, that the engine of the automobile was not working. In this case, the driver did not leave his seat or do anything at all to1 indicate that his engine was not working or that his car could be moved at will any instant. Indeed, he does not seem to have realized himself that he was not going to be able to get 'his car off the track until the-locomotive was within 200 to 300 feet of the crossing.
I -believe the evidence fails to show negligence on the part of the engineer, and. th-ait the judgment and order appealed from should be reversed.