Plаintiff brought this action to recover damages for the death of his son, alleged to have been caused by the negligence of the defendant. At the close of the plaintiffs testimony the court granted a nonsuit, and from the judgment thereon the plaintiff has appealed.
The facts shown at the trial are as follows:
On the 22d of July, 1895, the defendant was moving a freight train of about fifteen cars, loaded with basalt*402 Mocks, and on arriving at Cordelia station the train stopped. The track of the defendant at this station runs parallel with Main street, аnd directly south of it. Near the station there is another street which intersects Main street at right angles, and when the train was stopped it stood directly across this intersecting street—the locomotive and two or three cars being to the east of it—and .the travel into it from Main street was thereby obstructed. After the train had stood in this position eight or ten minutes, the deceased, a child between twelve and thirteen, years old, came along Main street from, the west, as far as the intersectiоn of the other street, and after waiting there two or three, minutes attempted to cross the train between two of the cars, and while in the act of climbing .over the coupling the train started backward without giving any notice by bell or whistle, and he was injured by being crushed between the cars, and subsequently died from the injuries so received. Whеther the court properly granted the nonsuit depends upon whether it appeared from the testimony on the part of the plaintiff that the deceased was guilty of negligence.
• The place where the injury was received was a public highway, and the deceased is not to be regarded as a trespasser by rеason of his attempt to cross the street while it was obstructed by the defendant’s cars. Nor was a temporary obstruction of the street, by stopping the train, in violаtion of any right of the deceased, since the defendant was also entitled to use the crossing as a part of its right of way. Each was required to exercise his right with а proper reference to the rights of the other, but an interference by one with the other in the exercise of his right did not confer upon the other the right to disrеgard the proper mode of using the street. The right to do an act does not authorize a person to do it carelessly. If the defendant-improperly bloсked the street, or allowed its train to remain upon the crossing for an unreasonable length of time, the de- ■ ceased was not, for that reason, authorized to incur unnecessary risk, or to act negligently in seeking to cross the street, but was still required to exercise such prudence as would ordinarily be required of one seeking to pass between the cars of a standing train which was liable to move at any moment. An attempt to pass between the cars of a train that is liable to. mоve
The fact that the deceased was only about twelve years of age did not require the court to submit to the jury whether his attempt to cross the street between the cars constituted negligence.. Negligence is the want of such care as a person of ordinary prudence would exercise under the circumstances of the case. When the facts are clear and undisputed, and when no other inference than that of negligence can be- drawn from them, the court is-not required to submit the question to the jury, but may itself make the inference. (Nagle v. California Southern R. R. Co.,
The failure оf the defendant to give notice that the train was about to start is not available to the plaintiff. This was not the proximate cause of the injury, as might have been the ease had the deceased sought to cross the street directly in front of the locomotive, or at the rear of the train. As was said in O’Mara v. Delaware etc. Canal Co., supra: “The injury could not have occurred except for plaintiff’s act in undertaking to climb over the train between the cars. It was for the court to determine whether that was negligence which contributed to the injury, and, as other courts have said, no one could doubt it was. Nor is it of importance that defendant was guilty of wrong or negligence in blocking up the way, or in starting its train suddenly and without notice. The defendant is not liable for the injury sustained by plaintiff, unless it occurred solely by its fault and negligence, and not in any degree through the fault or negligence of the plaintiff.” (See, also, Railroad Co. v. Houston,
The judgment is affirmed.
Van Fleet, J., McFarland, J., Temple, J., and Henshaw, J., concurred.
Rehearing denied.
Beatty, C. J., dissented from the order denying a rehearing.