99 Neb. 13 | Neb. | 1915
Appeal from a judgment awarding tbe administrator of tbe estate of William Davies $15,000 against tbe Wabasb Railroad Company for alleged negligence in tbe killing of-plaintiff’s intestate.
It is appellant’s first contention that because the statute of the state of Iowa was neither pleaded nor proved, authorizing a recovery for death by alleged wrongful act, no recovery could be had in this action. In other words, appellant contends that the courts of this state should not presume that the statute law of a sister state, in derogation of the common law, and which alone gives a right of recovery, is the same as the statute of this state. There is much force in this contention and there are respectable authorities which support it, but we prefer to base our judgment on another ground, and therefore decline to decide this question.
It appears that William Davies, on the 16th day of October, 1910, at about 3 o’clock in the afternoon, started from Coin, a little town in Page county, Iowa, .to go to Blanchard, which was about six miles' distant; both towns being situated on the line of the Wabash railroad. Decedent, without permission, license or invitation, started to walk along the railroad track on his way to the last-named town. After he had proceeded some distance, the second section of freight train No. 62, running-from Council Bluffs to Stenberry, Iowa, approached him from the north, and, when distant about half a mile, the engineer sounded the whistle of the locomotive for a road crossing, to which Davies paid no attention. There is no dispute in this evidence.
H. E. Wilson, the conductor of the train, testified, in substance, that his train was made -up of a locomotive and 10 or 12 cars; that the scheduled running time was from 10 to 12 miles an hour; that the train was behind time from one to one and a half hours; that he was riding
J. G-. Kinslow, the engineer, testified, in substance, that he first saw Davies when the engine had rounded the curve east of Coin, at which time he was about half a mile ahead of the train; that when he first saw him he whistled for the road crossing, and when he came close he gave what is known as the “stock whistle,” consisting of short, sharp blasts of the whistle. When he ceased giving the whistles, the locomotive was probably from 50 to* 100 feet away from Davies. He did not observe Davies, pay any attention to the signals, and when he became aware of that fact he reversed the engine, applied the air and did all in his power to stop the train, but failed to bring it to a stop until after Davies had been struck. On cross-examination the witness testified that the train was equipped
A. Y. Hughes, the locomotive fireman,' testified, in substance, that he remembered the giving of the whistles, and that when they were stopped the brakes were applied. On cross-examination he further stated, in substance, that he was looking ahead as the train approached Davies and observed him until the time when the pilot of the engine struck him. There was nothing about hjis appearance which indicated that he was not aware of the approach of the train or that he did not knoAV the train was coming. What the engineer, Mr. Kinslow, did, by way of setting the brakes and applying the air and using the sand, was the proper thing for him to do; that after he quit whistling he endeavored to stop the train as fast as he could.
W. L. Dunmire testified, in substance, that he was acquainted with Davies and saw him on the day of the accident; that they dined together that day, and after dinner they Avalked down to the Wabash railroad to a point where there was a dredge boat uséd in digging a ditch; that they remained there for 15 or 20 minutes, and from that point
G. W. Means, a resident of Ooin, who had been acquainted with .Davies for 10 or 12 years, testified that he talked with him on the afternoon of the day he was killed; that Davies understood the lip language, or that, in other words, a man he was well acquainted with could talk to him in ordinary conversation, and he could generally repeat right after you what you said, and if it wasn’t correct you shook your head and repeated it over, and then he would repeat it over right after you; that Davies said he came down on the morning train, and that he was going to Pan Dunmire’s for dinner, and was going from there to the dredge boat, and was going to walk from there down to Blanchard. The witness testified that he said to Davies, “Billy, you want to be careful on the railroad track, for they are running a good many extras on the Wabash now, they might pick you up,” and that Davies replied, “O, I am not afraid. I will be careful.”
W. L. Annan testified that he saw Davies at Ooin at the time when Means, was present, and heard part of their conversation; that he had known Davies for 20 or 25 years and talked with him frequently; that Davies would watch one’s lips when they were talking to him, and if he did not understand them he would- so indicate, and if they would tell him over he would repeat it. The witness stated that Davies said: “I am going to Blanchard, by way of the dredge boat which was working near the tracks;” that Means had spoken to him about the extra
W. L. Dunmire, on being recalled, further testified that Davies had said he “would have to keep his eyes open for that train, because he had to depend on his eyes for his ears.”
It was conceded that none of the train crew had any acquaintance with Davies or knowledge of his infirmity.
At the close of the evidence the defendant requested the court to direct a verdict in its favor, which request was refused. Defendant contends that this was prejudicial error, for the reason that plaintiff was not entitled to a verdict in his favor on the law and the facts of this case.
It clearly appears that plaintiff’s decedent was totally deaf, and that he knew the necessity of using his sense of sight to protect himself from danger. Before he went upon the railroad track, he was cautioned by two of his', friends and acquaintances to look out for the approach of trains. He responded that he would look out, because ' he hafi. to use his eyes instead of his ears. He said: “O, ' I am not afraid. I will be careful.” It therefore devolved"'.' upon Davies to use extraordinary care and exercise his sense of sight to learn of the approach of the train. Toledo, P. & W. R. Co. v. Hammett, 220 Ill. 9; McIver v. Georgia S. & F. R. Co., 108 Ga. 306.
Davies was a trespasser upon the track, was deaf, and, having failed to use his remaining senses in order to ascertain the approach of the train, was clearly guilty of contributory negligence. Unless it was shown by a preponderance of the evidence that the defendant’s engineer carelessly ran him down, no recovery could be had in this case. Chicago, B. & Q. R. Co. v. Wymore, 40 Neb. 645; Chicago, B. & Q. R. Co. v. Grablin, 38 Neb. 90; Chicago,
We are of opinion that tbe evidence in this case does not sustain the contention of the appellee that the defendant’s engineer wilfully ran decedent down. It clearly appears that none of the agents or servants of the railroad company had any reason to suppose that Davies Avas deaf, and that he would not get off the . track in time to avoid being struck by the engine; that, as soon as the engineer became aAvare of the fact that Davies would not get off the track, he immediately applied the air brakes, reversed his engine and sanded the track, in order-to stop the train and avoid the collision. Therefore, it cannot be said that the engineer was guilty of a want of reasonable care. It must be remembered that the railroad company was entitled to have its track clear in order that it might operate its trains for the benefit of the public. The safety of the traveling public also demands that the right of Avay of the railroad company should be unobstructed. If the company owed a duty to run its trains with reference to trespassers upon the track, look out for them, slacken speed and promptly stop whenever they had reason to expect them to be upon the track, the public would suffer thereby. The railroad company, as a public servant, owes a duty to the public to give prompt and rapid transit to its patrons as carriers of both passengers and freight. An individual who is a trespasser cannot justly claim that the railroad company shall forget, even for any moment of time, its duty to the general public and look out for him who shall be, first, guilty as a trespasser, and, second, guilty of gross negligence in not looking out for himself. Illinois C. R. Co. v. Eicher, 202 Ill. 556. The rule of law is that, where a man walking upon the track is a trespasser, and is negligent in failing to keep a lookout for approaching trains up to the time of the accident, and there is nothing to prevent him from getting out of the place of danger by stepping off of the railroad' track, the defendant company is not liable, unless its engineer
Appellee contends, however, that the right of recovery in this case depends upon the doctrine of the last clear chance. It is clear, however, from the great weight of authority, that in the case at bar the facts are not sufficient to invoke that doctrine. There was no time after Davies was discovered upon the track, up to the very minute when he was struck by defendant’s engine, that he could not have avoided the injury to himself by merely stepping off the railroad track, and we think it cannot be said that he was discovered to be in a state of peril at any point of time before the engineer used his utmost endeavor to stop the train. French v. Grand Trunk R. Co., 76 Vt. 441; Carrier v. Missouri P. R. Co., 175 Mo. 470; Green v. Los Angeles T. R. Co., 143 Cal. 31; Holwerson v. St. Louis & S. R. Co., 157 Mo., 216; Merritt v. Foote, 128 Mich. 367; Gilbert v. Erie R. Co., 97 Fed. 747; Drown v. Northern O. T. Co., 76 Ohio St. 234; Dyerson v. Union P. R. Co., 74 Kan. 528; Dunlap v. Chicago, R. I. & P. R. Co., 87 Kan. 197; Missouri P. R. Co. v. Prewitt, 59 Kan. 734.
As we view the record, the district court erred in refusing to direct a verdict for the defendant. The judgment of the district court is therefore reversed, and the cause dismissed. -
Reversed and dismissed.