38 Neb. 90 | Neb. | 1893
Lead Opinion
On July 12, 1888, Samuel Grablin, a boy about nine years old, while trespassing on the track of the Chicago, Burlington & Quincy Railroad Company — hereinafter called the “railroad company” — was struck and killed by-engine of said railroad company.
This is a suit for damages brought against the railroad company by the boy’s administrator. There was a verdict and judgment for the administrator, and the railroad company prosecutes error.
The averments of negligence in the petition are as follows: That plaintiff is the father of the deceased, and at the time of his death lived on a farm near the railroad company’s track; that no part of the line of road at the-time of the accident was fenced; that the deceased was-about nine years of age, and was sent by his father to look after some stock, shortly before he was killed; that the train causing the accident to the deceased consisted of a lo-. comotive and some freight cars, and that said train was not equipped with air-brakes; that the train was an irregular one and out of its usual time, and was running at a great rate of speed, and omitted to give any signal, by bell or whistle, of its approach, and was not on the time of any trains passing at that point, and was so negligently and
The answer of the railroad company was a general denial of the' averments of the petition, and a plea of contributory negligence on the part of the deceased.
On the trial the administrator was permitted, against the objection and exception of the railroad company, to prove by several witnesses, and certain facts and circumstances, that if the engineer in charge of the locomotive had been observing a proper and careful lookout ahead he could have seen the boy in time to have brought the train to a stop before it reached the point where the boy was; or, stated differently, the administrator Was permitted to introduce evidence showing a ground of negligence not alleged in the petition as causing or contributing to the accident. This ruling of the trial court is assigned as error. The rule everywhere is that the pleadings and proof must agree. This action was for damages alleged to have been caused by the negligent acts and omissions of the railroad company. The neglect or failure of the engineer to keep a proper lookout ahead is not alleged in the petition as one of these acts or omissions of negligence. Pleadings should be liberally and fairly construed, but such a construction of this petition would not advise the railroad company that on the trial it would have to meet this ground of negligence. No such ground of negligence was alleged in the petition, nor fairly inferable from the language thereof. The allegations in the petition that the train “was so.negligently and carelessly run without air-brakes, and without
It remains to be ascertained whether the admission of this evidence was prejudicial to the railroad company as well as erroneous. The undisputed evidence in the record is that the deceased, at the time he was struck by the engine, was a trespasser on the railroad company’s track; that he was not on or nearer than 200 feet of any public or private crossing; that the engine was within thirty-five or forty feet of the boy when he was first seen by the engineer; that the boy was then lying on the track between the rails; that, the servants of the railroad company, after their discovery of the boy, made every reasonable and proper effort to stop the train and preveut the accident; that the railroad company’s track was not fenced; and that the engine and tender were equipped with an air-brake, but the other cars in the train were not. There was evidence also that the boy had been wallowing in a pool of water in a “ borrow-pit ” near the track, and had probably lain down in the sun on the track to dry himself and fallen asleep; that the speed of the train was seventeen to thirty-five miles an hour; that the boy when struck was at a point about 700 feet east of a private crossing and 1,200 feet east of a public crossing; that the train, until within 300 feet of the boy, was, for some distance, running on a curved track; that the accident occurred about 5 o’clock P. M. on a bright, sunny day; and that the boy had been sent out by his father that afternoon to look for some stock. It is the duty of railroad companies to signal the approach of their trains to cross
The fact, if it was a fact, that the train was not on-schedule time, of itself was not a statement of any negligence," and there is nothing in the record tending to show that the unfortunate casualty was caused or contributed to-by that circumstance. This verdict does not depend on, that fact in any degree for its support.
It .is doubtless the duty of railroad companies to adopt, apply, and use the latest and best tried and proved machinery and appliances in the operation of their roads and for the management and control of their trains and engines. It is a duty they owe especially to their patrons and to the general public, and results from the nature of the business-for which they exist and in which they are engaged, viz.,, the carrying of freight and passengers. The air-brake isamoug the modern tried and proved appliances that have become a necessity in the operation and management of railroad engines and trains; and the neglect of a railroad company to keep its trains equipped with such brake is doubtless negligence for which, in case of injury resulting therefrom, it would be liable. But in the case at bar the evidence — and all the evidence — shows that the boy, when first seen by the engineer, was only thirty-five or forty feet away. No train running seventeen to thirty-five-miles an hour, if fully equipped with an air-brake, could have been stopped in that distance. Unless, then, the speed of the train was negligence, the default of the railroad
By the statutes of this state railroad companies are required to fence their tracks, an.d while the main objects of this law are to protect stock running at large and increase the safety of passengers on railway trains, yet the fencing of their tracks by railroad companies is a positive duty enjoined upon them by law. It is in the nature of a police regulation, and their failure to obey the statute is negligence. In the case at bar the administrator, to recover by reason of the failure of the railroad company to erect fences, must have proved that his intestate’s death was caused by such negligent omission of the railroad company. The administrator, on the trial, offered to prove the failure of the railroad company to fence its tracks as required by the statute, and the trial court refused to admit the evidence. The evidence was competent and should have been admitted.
The verdict in this ease rests almost entirely upon the evidence that the engineer, had he been keeping a proper and vigilant lookout ahead, could have seen the boy in time to have saved him. The admission of the evidence to prove such negligence was, therefore, prejudicial error.
We might close this opinion here, but as the case must be tried again we deem it best to notice some other points.
Exception is taken by the plaintiff in error to the giving by the trial court of an instruction as follows: “ You are instructed that if you believe from the evidence that the deceased, Samuel Grablin, at the time he was killed was about eight years of age, and that he went upon the
In Huff v. Ames, 16 Neb., 139, this court thus announces the rule in such eases: “ In an action by an infant for damages, caused by the alleged negligence of the defendant, where it is claimed by the defense that the injury resulted from contributory negligence of the infant plaintiff, it is proper for the court to instruct the jury that in determining whether or not the plaintiff was guilty of negligence they should take into consideration his age and discretion in determining that fact, and that the same degree of caution and care should not be required of him as in case of an adult under similar circumstances.” This is undoubtedly the correct rule. It would be manifestly unreasonable, if not inhuman, to judge the conduct of an infant of tender years by the same standard which governs the conduct of an adult. All that the law requires- of such an infant is that he exercise that care, discretion, and prudence which may reasonably be expected from children of like age. (Beach, Contributory Neg., sec. 46; Sherman & Redfield, Neg., sec. 73; Whittaker, Neg., p. 411; Sioux City & P. R. Co.v. Stout, 17 Wall. [U. S.], 657.) In the abstract the instruction was correct.
The trial court refused to instruct the jury as follows: “You are instructed that although you may find from the
Virginia M. R. Co. v. White’s Administrator, 34 Am. & Eng. R. Cases [Va.], 22, was a suit for damages for killing an adult trespasser. The trial court refused to instruct the jury as follows: “If the jury believe from the evidence that plaintiff’s intestate was killed by the engine of the defendant company while he was walking on one of the tracks of the defendant in its yards, * * * the plaintiff cannot recover for such injury unless he proves to the satisfaction of the jury that the engineer, * * * after he discovered the danger in which the deceased was placed, could, by the use of ordinary care, have prevented the accident.” On appeal the supreme court of Virginia say : “ This instruction was properly refused. Its vice is that it ignores the duty of the engineer * * * to have exercised ordinary care and diligence in keeping a lookout to avoid injuries to the deceased. * * * It was the duty of the engineer to use ordinary care not only after discovering the dangerous position of the deceased, but in keeping a lookout to warn him of approaching danger.” To the same effect see Guenther v. St. Louis, I. M. & S. R. Co., 34 Am. & Eng. R. Cases [Mo.], 47; Reilly v. Hannibal & St. J. R. Co., 34 Am. & Eng. R. Cases [Mo.], 81.
In Texas & P. R. Co. v. O’Donnell, 58 Tex., 27, it is said: “Arailroad company is responsible for an injury to a child trespassing on its track, where the injury might have been prevented had the employes of the company used ordinary care, in keeping an outlook.” To the same effect see Isabel v. Hannibal & St. J. R. Co., 60 Mo., 475; Atchison, T. & S. F. R. Co. v. Smith, 28 Kan., 541; Keyser v. Chicago & G. T. R. Co., 66 Mich., 390; Meeks v. Southern P. R. Co., 56 Cal., 513; Frick v. St. Louis, K. C. & N. R. Co., 75 Mo., 542.)
The refusal of the court to give the instruction referred to was correct. For the error committed in the admission
Reversed and remanded.
Dissenting Opinion
dissenting.
I am unable to give my assent to the opinion in this case for the following reasons:
The syllabus does not present the point actually decided. In the petition, as set out in the opinion, it is alleged that the train “was so negligently and carelessly run without air-brakes, and without proper care, and without proper signals or alarm of its approach, by reason whereof the deceased was unaware of its approach.” The evidence objected to as set forth in the opinion was “that if the engineer in charge of the locomotive had been observing a proper and careful lookout ahead he could have seen the boy in time to have brought the train to a stop before it reached the point where the boy was,” and it was held in -the above opinion that this proof was not admissible under the pleadings, and the case on that ground reversed. To this I cannot give my assent. The allegation that the train was run without proper care at the place where the death occurred would admit any evidence tending to show negligence or want of due care. Negligence is the ultimate fact to be pleaded, and it forms part of the act from which injury ari«es. An allegation of negligence or carelessness, as applied to the conduct of a party, is not a mere conclusion of law, but a statement of an ultimate fact. (Rolseth v. Smith, 35 N. W. Rep. [Minn.], 565; Clark v. Chicago & W. M. R. Co., 28 N. W. Rep. [Mich.],
The opinion in this case at the time it was filed was concurred in by nil the members of the court. Subsequently the chief justice furnished the reporter the above dissenting opinion.