210 F. 414 | 4th Cir. | 1913
Lead Opinion
Having in view the evidence that the engineer was looking ahead, that he had a straight track of 130 feet, and that the train could be stopped in that distance, and the evidence of several quick blasts of the whistle at an appreciable time and distance before another series of blasts and the application of the air brakes, we are unable to resist the conclusion that reasonable men might draw these different inferences on vital issues, namely: First, that the engineer’s statement that he used every means at hand to stop the train as soon as he saw the children was correct, or that in the emergency which was upon him he at first relied on the alarm whistle and failed to apply the brakes
For these reasons this court is of the opinion that the District Court erred in directing a verdict for the defendant, arid the judgment of the District Court is reversed, and the cause remanded for a new trial.
Reversed.
Dissenting Opinion
(dissenting). The conclusions of the majority involve the affirmance of two propositions: First, that there was evidence from which the jury might find that the engineer did in fact see these children when far enough away to stop -the train before reaching them, although he testified positively to the contrary; and, second, if the jury so found, that there was evidence from which they might further find that he did not thereupon do what a reasonably prudent engineer should have done to avoid the accident.
Assuming that the first of these propositions is justified by the proofs submitted, Í am of opinon, after careful examination of the record, that nothing was shown which would sustain a verdict for plaintiff on the theory of the second proposition. It appears from the testimony that the engineer could not see the children on the track ahead of him until the locomotive rounded a curve which terminated about 130 or 140 feet from the point where plaintiff was injured. Undoubtedly, if he had reversed the engine and used the emergency brakes upon the instant, the train would have been stopped in time, since by those means it could have been brought to a standstill, at the speed it was moving, before going more than .60 to 70 feet, as was in fact done in this instance. What the engineer saw, or could have seen, when the stretch of straight track came within his line of vision, was “these two little children running down the track,” to use the language of the only witness who testified as to where they were and what they were doing at that moment.
What the engineer at once did, as the jury might find from the plaintiff’s proofs, was to sound several sharp, warning blasts with the whistle, and then a few seconds later, for it was all a matter of seconds, to reverse the engine and apply the emergency brakes, but unfortunately not soon enough to avert the disaster. Because hé did pot immediately use every effort to stop the train, but for a brief interval resorted -to the warning whistle, it is held to be a question of fact for the jury whether “a reasonably prudent man could and would have stopped the train in time.”
To this I cannot agree. In my judgment, there is no aspect of the testimony or allowable inference therefrom which would support a finding of imprudent or unreasonable conduct on the part of the engineer. Indeed it seems to me that he did just what a careful engineer would be likely to do in such an unexpected emergency. Under the circumstances disclosed, it would be the natural, almost instinctive, act of an engineer to give signals of warning, which would presumably have the effect of clearing the track. And until he had some reason to apprehend that such signals might fail of their purpose, the