Missouri Pacific R'y Co. v. Weisen

Robertson, Associate Justice. The court below found, as a fact, that after the servants of appellant discovered the danger to [447] which, appellee’s negligence exposed him, they negligently failed to use the means in their power to prevent or lessen the injury. The injury would not have happened if the appellee had not been on appellant’s track at a time when he ought not have been there. Still, after it was discovered that he would not effect his escape from the track in time to avoid injury, it was the duty of appellant to prevent the result. It could have done this, or, at least, it could have given the appellee more time to get off the track than was given him; and if he then failed to get entirely out of danger, the violence of the concussion, upon which depended the extent and degree of his suffering, could have been softened. Appellee was seventy-nine years of age, and was making every effort in his power to get out of the way of the train, when the engineer saw, in time to prevent or greatly lessen the injury, that he would probably fail. Under such circumstances the appellant was properly held liable. Thompson on Keg., p. 448. The law would otherwise be accessory to the mutilation or murder of men. A man does not forfeit his life, or his right to remain whole, by going where he has no right to go, or being where he has no business. Ueither appellee’s trespass, nor his negligence, was the proximate cause of his injury, but the appellant’s refusal, when the danger was seen, to stop or sufficiently slacken, the train. S. & R. on Neg., see. 25. We think the court below could assume, without the aid of testimony, that appellee would not have been so seriously injured if the train had been moving more slowly when it came in contact with him. But, in the absence of a statement of facts, we cannot say that the record sustains appellant’s counsel in assuming that there was no testimony to this effect. Kor is the period of three seconds necessarily too short a time to impose upon appellant a duty, and to require its performance. Instinctively and impulsively, a human agent, not negligent, would have done what was required to prevent the threatened injury. The court found, as a fact, in effect, that three seconds was time in which the engineer could comprehend the necessity of action and could act. Without a statement of facts, we cannot hold this finding wrong, merely because we know that three seconds is a very brief space. We do not think there is any error disclosed, and the judgment is therefore affirmed. Affirmed. [Opinion delivered February 9, 1886.]