Kansas Pacific Railway Co. v. Twombly

Hallett, C. J. At the last term we examined the bill of exceptions in this record, and the time and manner in which it was perfected, and arrived at the conclusion that the several rulings of the court in admitting and rejecting testimony at the trial, and in directions to the jury were not properly preserved, and that the only matter presented for review in this court is the ruling upon the motion for new trial. 2 Col. 559. According to that 'decision and an earlier case (2 Col. 169), the only question for present consideration is the finding of the jury, which we cannot disturb, unless it appears to be clearly against evidence or without support. This view is not controverted, but it is said that the evidence discloses a want of due care on the part of appellee’s intestate at the time of the alleged injury, which contributed to the result. This, if true, will defeat the action, for it is considered that in a place of danger, such as a railroad track on which cars frequently pass, every one is bound to be vigilant in his own protection, according .to the common experience of men of ordinary prudence .under like circumstances. But it does not rest with the plaintiff to prove that deceased used such care and caution, although it is enough that the absence of it appears in his evidence. Railroad Co. v. Gladmon, 15 Wall. 401. Upon facts admitted or clearly proved the inference of negligence in the party injured is often so strong that the law will not admit the plaintiff’s right of action, but in other cases it is said to be a question for the jury. Railroad Co. v. Stout, 17 Wall. 657. It is often difficult to trace the line between these classes of cases, but here it appears to be quite distinct. The situation of deceased at the time of the accident was peculiar, and it is not g,t all certain that a prudent man under like circumstances would have behaved differently. Two railroad tracks were laid in a public street of the city of Denver, one of which was used by the Denver and Rio Grande Co. and the other by appellant. The general course of this street is said to be north and south, and it is [130] intersected at regular intervals by other streets crossing at right angles, all of which were used by the public. On one of these cross streets deceased came from the west first to the track of appellant, which was upon that side, and then to the track of the Rio Grande Co. on which a train was approaching from the north at a speed of five or six miles an hour. On this latter track and directly in front of the approaching train, deceased met one Truax, who put his hand on deceased’s shoulder and pressed him back to appellant’s track as if to speak to him. At the time he so met deceased, Truax was coming from the east in a rapid walk or run, and the Rio Grande train was so near the place of meeting that there was no time for words, and to use his own phrase, Truax carried deceased back in order that he might speak with him. In this it is supposed that deceased exhibited a want of care, for it is said, that having passed appellant’s track in safety, he should not have returned to it. And perhaps this is so, but we must remember that all men do not decide wisely in sudden ■emergencies of danger. We are not very well informed as to Truax’s manner in approaching deceased, except that it was hurried, and, therefore, we cannot say what the latter might have inferred from his conduct. Possibly Truax’s appearance and bearing was such as to indicate that new dangers lay in the pathway of deceased, and certainly his conduct indicated that he had a matter of importance to impart. To hold as matter of law that a correct decision must be made upon the instant, under the circumstances, is too large a demand upon human infirmity. Nor can it be said with certainty that at the point of turning back, deceased had notice of the danger which awaited him on ■appellant’s track. He had just crossed that track safely, and if, in doing so, he looked for a reasonable distance in each direction along the track, it does not appear that appellant’s locomotive was then within such distance. If upon coming to a railroad track in a city, a footman is bound to look for cars in both directions (a point upon [131] which we express no opinion), it is plain that he is not, in all cases, required to look as far as the track may be seen. In cities and towns, railroad trains are usually moved slowly, and there is not the same reason for looking to a great distance along the track that obtains in the country where trains are driven at high speed. This may not be true everywhere in eastern States, where express trains are often taken through considerable towns and villages at high speed, but it is generally true -with us, and the evidence warrants the belief that the roads in question were so used. If, then, upon first coming to appellant’s track as a footman, deceased looked in each direction for a reasonable distance, as it is said he was bound to do, it does not appear that the locomotive was then within such distance, and therefore it cannot be said that he was advised of danger from that locomotive. Nor if he saw the locomotive with the tender'in advance, at a distance of several hundred feet, can it be said with certainty, that he knew that it was approaching him. In a front view, with piston and driving wheels in motion, the approach of an engine is much more easily detected, than when it is backed up, and the tender only, on low wheels, is in the- line of vision. Upon this we conclude] that turning back from the Bio Grande track was not an act of negligence, which the law will recognize as such, but that matter was for the consideration of the jury, to whom it was properly referred, and we will now advert to what occurred afterward. The carelessness imputed to deceased, at this point,- is, in not looking for the approaching locomotive, for it is probable that he could not hear it, on account of the noise made by the Bio Grande train. If, as claimed by counsel, he remained on the track for a considerable time, without looking, there would be some ground for the charge, but the jury may have reached another conclusion on the evidence. The only witness to that interview was Truax, and although he stated that he and deceased stopped on the [132] track, at another time he says, that he “almost kept right along.” But few words were exchanged, and Trnax ran away without seeing or hearing the approaching locomotive, and had gone but twenty feet when the accident occurred. Upon this the jury may have believed that deceased paused but a few seconds, and as to that, it stands in the same category with the other circumstances of this affair. We think, therefore, that as a matter of law it cannot be said that the negligence of deceased directly contributed to his death, and whether this was true as matter of fact, was for the consideration of the jury. To them it was properly referred, and by them it has been determined, in conformity with established principles of law. Those principles are recognized in the following cases, with which, as we have learned from the argument, counsel are entirely familiar. Railway Co. v. Whitlaw's Admr, 13 Wall. 270; S. C., 2 Bissell, 282; Wheelock v. Boston & Albany Railroad Co., 105 Mass. 203; Marietta & Cincinnati Railroad Co. v. Picksley, 24 Ohio St. 654. No point is made as to the negligence of appellant’s servants, which appears to have been pretty clearly made out, and, therefore, we do not discuss it. As to the suggestion that the injury was inflicted by the Rio Grande train, it is not supported by the evidence, and the jury have found otherwise. Upon the whole case we see no reason to disturb the verdict, and the judgment will be affirmed, with costs. Affirmed.