113 P. 1119 | Mont. | 1911
delivered the opinion of the court.
On January 20, 1909, Omer Haddox, about fourteen years of age, a son of the plaintiff, was struck by an engine of the defendant company, in its yards at Whitehall, and killed. The engine was in charge of engineer Thomas Barry. The complaint alleges that Barry willfully and intentionally drove the engine against the boy at a rate of speed in excess of thirty miles per hour. The closing allegation is that the acts of the defendants were “willful, intentional, and in criminal disregard of the life and safety of the boy.” No negligence is charged. Compensatory and punitive damages are demanded. Both parties introduced evidence. After the testimony was closed, the district court of Jefferson county directed a verdict for the defendants. Plaintiff appeals from the judgment entered on the verdict.
Wm. B. Huddleston testified for the plaintiff: “Before the engine struck the boy there was no unusual sound from the engine more than his whistle; the whistle was a danger signal— the stock whistle. The whistle must have sounded fully 200 yards before he struck the boy. Before the boy was struck he was walking toward the depot, west, with his head down, and just before the train struck him he looked up and across toward an engine that was on the sidetrack. He had a dog with him. Between the time that I heard this stock or emergency whistle and the time the boy was struck, he had not turned around toward the engine that was approaching him. I could not see any efforts that Mr. Barry made to stop that train before the boy was struck; I could not see inside the cab. I could not say that there was much cheeking of the speed; I could not see that he was making much effort to check the train — that is, at the time it struck the boy. The train stopped at the usual place by the depot where it formerly stopped. The boy was carried or thrown by the train in the neighborhood of thirty feet — some that measured it said it was thirty-seven feet; he was eight feet of [off] the track. When I first noticed the boy on the track he was, I should judge, 400 yards below the depot, east of the depot. I could not say how long he was on the track; he walked up, I
D. F. Riggs testified: “The train was running very fast in comparison to the usual running into the station. I would say it was very fast before and after it struck the boy. After the train struck the boy it stopped immediately afterward. It was right near the depot when it struck the boy, and it stopped at the depot, or just passed the depot; I think before it finally came to a standstill it just ran past the depot. It went the length of a train or a little more beyond the usual stopping place. I heard the train whistle; he whistled as he came to the depot, or nearing the depot. The stock whistle blew several times before the boy was struck; just before and about the time he was struck the whistle was blown. It must have been 300 or 400 feet, I would judge, from the train to the boy when the stock whistle was sounded.”
Thomas Barry, the engineer, called by the plaintiff, testified: “The first I saw of the boy I was about ten car-lengths from him, when he first approached the track; that would be about 400 feet away. That train could be stopped in 300 feet, going thirty miles an hour at that point.” On cross-examination he said: “When I first saw the boy, he was in a place of safety, clear of the rails.” (Redirect.) “Q. How far from the place where he was struck was the boy when you first saw him 1 A. I could not say exactly to that; that ain’t clear to me now how far he had walked along the track before I struck him. He was not in a place of danger when I first saw the boy; he got closer to the track afterward.” (Recross.) “I could not stop my engine after the time that I saw the boy step from his place of safety into his place of danger. The train could not be stopped; it was impossible.” The plaintiff here rested his case and the defendants moved for a nonsuit, which motion was overruled. Whereupon Barry testified for the defendants as follows: “WThen I first saw the boy, he was outside of the rails, clear of the engine, I should judge, about three feet when I first saw him, when he
The witness was then asked concerning certain testimony given by him before the coroner, and he answered that he did not remember whether he so testified or not. Finally, his entire testimony given at the coroner’s inquest was received in evidence by consent. We quote therefrom as follows: “When I first saw the boy, it seems he came out from behind two box-cars which were setting on the east end of the house track, and moved over to main line. I was about ten car-lengths away on the main .line, coming to the station. I saw the boy alongside the track, and I whistled the road crossing whistle. At the. same time the bell was ringing. I could not arouse him, so then I whistled the stock signal up until I struck him. When I saw I couldn’t arouse him with the whistle, and he didn’t turn around with me approaching, I put the brakes in the emergency notch and slowed down pretty slow. The boy was outside both rails and ties and with back to the engine was walking toward the station. The pilot beam extends beyond the ends of the ties. The boy rolled quite a way after he was hit. I do not think he heard the whistle; he would have looked up if he had. I put the brakes in the emergency notch before I blew the stock whistle, seeing that I couldn’t arouse him. This was after I blew the road crossing whistle. I put on the emergency brakes just as soon as I saw him coming to the track. I supposed he was going to cross. He didn’t cross, but started up alongside the track. Then I sounded the crossing whistle. He was in reach of the pilot beam all the time after coming to the track. He was quite a way east of the crossing when struck. I don’t suppose he saw the engine.” On further cross-examination he testified: “Q. The statement is true as you gave it here, that if you had not released the brakes, the door of the baggage-car would have stopped right at the boy? A. That would be a good deal of a guess, too. I thought at that time I could have stopped the train. Q. It would have stopped right there? A. Maybe sooner than that. Q. How is it pos
It will be seen that the evidence is very meager as to what actually transpired. This is probably due to the fact that but a few seconds elapsed from the beginning to the end of the tragedy. Respondent’s counsel contend that, because Barry was called as a witness by the plaintiff, the latter is bound by his testimony. We do not consider the matter important, and shall, moreover, treat all of the testimony as substantive in nature, notwithstanding that portions of it were given before the coroner. We do not attach much importance to Barry’s statement that he did not intend to strike the boy. His acts speak for themselves so far as they are disclosed. We find no evidence that he intentionally ran his engine against the boy.
Was the death of Omer Haddox due to any willful act or omission on Barry’s part? Our Penal Code (Rev. Codes, sec. 8099) declares that the word “willfully,” when applied to the
It is contended that Barry’s testimony is contradicted and, contradictory, and might have been disregarded by the jury. And so it might have been, under certain circumstances. (Bowen v. Webb, 37 Mont. 479, 97 Pac. 839; Poor v. Madison River P. Co., 38 Mont. 341, 99 Pac. 947; Beeler v. Butte & London C. Dev. Co., 41 Mont. 465, 110 Pac. 528.) We shall therefore consider no part of it that is not corroborated. Juries may
It is quite evident from all of the testimony that Barry saw the boy as early as did any other witness; that is, when he first approached the track. The engineer is careful to say that at
The judgment is affirmed.
Affirmed.