94 F. 321 | 8th Cir. | 1899
This suit was brought by W. A. Garner and Etta Garner, the plaintiffs in error, against Prank Trumbull, as receiver of the Union .Pacific, Denver & Gulf Railway Company, the defendant in error, to recover damages on account of the death of their minor child, John C. Garner, who was run over and killed by a train which was being operated at the time for and in behalf of the receiver. The accident occurred in Las Animas county, Colo., about three miles from the city of Trinidad, and between that city and a town called “El Moro.” In the immediate vicinity of the place where the accident occurred was a small settlement called “Chilili.” The train which ran over the child was a coal train, consisting of a locomotive, seven empty ears, and a caboose. The complaint alleged, in substance, and there was evidence tending feo show, that the parents of the child, who was about two years old, lived in a house which was about 256 feet from the track of the Union Pacific, Denver & Gulf Railway Company; that, during the temporary absence of the child’s mother (she having gone on an errand to the house of her sister, who lived about a quarter of a mile distant), the child strayed away from home and from the custody of those in whose charge it had been left, and got on the railroad track, where it was run over and killed; that at the place where the accident occurred the track was perfectly straight, so that the child might have been seen from the direction in which the train approached for a distance of over 600 yards, the atmosphere being very dear; and that the track at that place, and for a considerable distance in either direction therefrom, had been used for a long time by the people and villagers,
In view of the testimony tending to show the extent to which the track at the place where the accident occurred had been used by the public, and the length of time such use had continued, we think it was (he province of the jury to decide whether such use had not been of such long standing and of such a nature as to impose on train operatives, on approaching that locality, the duly of anticipating the probable presence of persons on or near the track, and of-exercising ordinary watchfulness to avoid injuring them. And, on the assumption that the jury would have found (hat the engineer or fireman was under an obligation to keep a lookout for persons who might be on or near the track, we are also of opinion that the testimony concerning the distance at which the child might have been seen before it was run over (one witness, who had measured the distance, saying that it could have been seen for 2,300 feet) rendered it necessary for the jury to determine whether the engineer and fireman did in fact exercise ordinary care to discover the child.
It is suggested in behalf of the defendant in error that the instruction given by the trial court may be sustained on the ground that the parents of the child were guilty of such contributory negligence as precludes a recovery, but we are of opinion that this proposition is untenable. The evidence showed that tire child’s father was absent from home on the day of the accident; that the mother, as before stated, luid gone on an errand to her sister’s house, a short distance away; that the child, in company with its three brothers and sisters, the eldest of whom was a girl eight years old, was