100 Neb. 192 | Neb. | 1916
Lead Opinion
Ralph Johnston and his father’s hired man were crossing the defendants’ railroad with a team and wagon, and the wagon was struck by an engine and both the occupants of the wagon were almost instantly killed. The plaintiff brought this action, as administrator of the estate of his son, Ralph Johnston, in the district court for Douglas county, and recovered a judgment, from which the defendants have appealed.
Extensive briefs have been filed by both parties and many questions are presented and discussed, but it seems that there are two controlling questions upon which the decision of the case must depend. The defendants contend that the plaintiff cannot recover because of the negligence of the deceased. The deceased, about 13 years of age, and Andy Johnson, a man of middle age, who was in the employ of the father of the deceased,
It seems to be conceded that there was no building or other obstruction which would interfere with a free view of the track upon which the train was approaching for a distance of over a quarter of a mile from the crossing where the accident occurred, except two trees, which could not wholly obstruct the view of an oncoming train, and which were about 40 rods from the crossing. “The act of a party in going upon a railroad crossing without first listening and looking for the approach of a train, without a reasonable excuse therefor, is such as permits of no other inference than that of negligence; and if such failure to look and listen contributes to the party’s injury he cannot recover.” Omaha & R. V. R. Co. v. Talbot, 48 Neb. 627.
The plaintiff contends that the deceased was notj guilty of contributory negligence, because “Ralph and Andy, driving north along the lane to the crossing, would be going directly against whatever wind was blowing, the natural tendency of which would be to cause their eyes to water and impair their vision. Turning into the driveway, and looking down the track, they Avould be looking almost directly into the sun, the reflected glare of which from the snow which covered the ground would be blinding. The train was running an hour and a half behind its regular* schedule time. The
The rolling mill and depot referred to were more thán a quarter of a mile from the crossing. If the steam and frost enveloped the train, and was approaching in a mass at the rate of 45 miles an hour, that of itself Avould suggest danger. It is incredible that, if either of these parties had seen such a condition, he Avould have failed to know and declare the danger. That the cold wind in their faces or the glare of the sunshine upon the snow should prevent them from seeing the approaching train is likewise incredible. The train was running (directly against the wind, and it is, of course, impossible that its own steam and smoke should precede the train and hide the approaching engine.
There is some evidence tending to show that it is probable that the hired man was driving the team; but that seems to be immaterial. If either party had looked and listened, and had given the natural warning, the accident would have been avoided. The train was late an hour or more, and this may have added to their feeling of security, and may have been one of the causes inducing their negligent conduct. But the defendants might run their train whenever necessary in the conduct
There is not room for the application of the “last clear chance” doctrine. That rule of law is based upou the idea that, when any person is in a place of danger, Avhether negligent or not, one who knows, or who might know, and under the circumstance ought to know, of the danger, must use every precaution to avoid injuring him. These parties! were driving along the farther side of a fence which marked the limits of the company’s right of way. There was no indication that they would attempt to cross the track in the. way of the' oncoming train, until they turned through the gate, which was about 50- feet from the crossing. There is no evidence that the engineer or fireman saw them during the short time that they were driving these 50 feet, or that they Avere in a position where they ought, if using due care, to have seen them. In the absence of clear evidence of opportunity on the part of the engineer to avoid injuring them after their danger was discovered, or ought to have been discovered, there is no reason for the application of the “last clear chance” doctrine.
The judgment of the district court is reversed and the cause remanded.
Reversed.
Dissenting Opinion
dissenting.
This action is brought to recover for the killing of a boy not quite IB years of age. The majority opinion holds
I cannot take the view that, as a matter of law, the deceased was shown to be guilty of contributory negligence. The train was running at a speed of 45 to 50 miles an hour. Defendants admit in their brief: “The wagon was struck by a north-bound passenger train running at a speed of about 55 miles an hour.” It is said in the opinion “that there was no building or other obstruction which would interfere with a free view of the track upon which the train was approaching for a distance of over a quarter of a mile from the crossing where the accident occurred, except two trees, which could not wholly obstruct the view of an oncoming train, and which were about 40 rods from the crossing.” The trainmen, therefore, could have seen that distance. At the rate the train was. moving, the team must have been approaching the track at a right angle when it was a quarter of a mile away. If the train were running at a speed of 45 miles an hour, it would only take about one-third of a minute to run a quarter of a mile.
The deceased was large for his years, but his judgment, care and discretion should be measured by the -fact that he was in the sixth grade at school, which is the ordinary grade foe a boy of his age. There is no presumption that a child 14 years of age has such discretion, care and prudence as an adult. Ittner Brick Co. v.
The train was late, and was running at an unusual rate of speed. The fireman testifies that he stopped ringing the bell when he left the mill crossing, and was engaged in putting in a fire until after the accident occurred, so it is clear no bell was ringing for 1,620 feet before the accident. He also said he based his answer that he rang the bell upon the fact that on approaching crossings that was his habit. He ceased to look out when he stopped ringing. The last whistle was blown at the depot, which was about 2,300 or 2,400 feet to the south of the crossing, the wind blowing from the north. The engineer testified that from the time he left the mill crossing until he reached the private crossing he would not be able to see persons driving along the lane on the left-hand side, and could not see anything on that side until it came almost directly in front of the locomotive. It is apparent, therefore, that all vigilance ceased at the mill crossing.
In this state of facts I think the views expressed by the supreme court of Iowa in the case of Johnston v. Delano, an action brought by the father of deceased to recover for the same death, reported in 154 N. W. (Ia.) 1013, are correct. There is a difference in the applicable law of the two states in this: That in Iowa
