Cogswell v. Oregon & California Railroad

By the Court, Boise, J.: The evidence in this case is all reported, and the only question for us to decide is whether there ivas a sufficient case proved by the plaintiff to be submitted to the jury — a case “not sufficient to be submitted to a jury, is one where it appears that if the jury were to find a verdict for the plaintiff, the court ought, if required to set it aside for want of evidence, to support it.” (Civ. Code, see. 244, p. 154.) The circuit court having all this evidence before it, on the motion of respondent, ordered a nonsuit. This order must have been based on the ground that the plaintiff had failed to show any negligence on the part of the company, or that the deceased was guilty of any such contributory negligence as precluded a recovery, or on both these grounds. After carefully examining this case we find no proof of any negligence on the part of the respondent, unless it be that the engine was running at an unauthorized rate of speed, did not ring the bell or make sufficient effort to stop the train. The evidence tends to show that in the opinion of witnesses the engine was running at the rate of fifteen or twenty miles an hour; these estimates are necessarily very uncertain. The directors of the company and the ordinance of the city required a less speed, and there was some evidence to show that the speed ivas above what was authorized, and above what travelers across the track had reason to. expect, and therefore might increase the danger of accidents. It seems also that the bell was not rung, or if rung the sound ivas not noticed by the witnesses, and this neglect was a breach of duty on the part of the company, Avho, in vieAV of the danger of collisions from great speed of engines and very serious nature of such accidents, should exercise great care in giving the required signals of approaching trains. It is the duty of the managers of moving trains to stop them when approaching any apparent danger. In this ease the evidence shoivs that the view of the track was unobstructed for three-fourths of a mile; and for aught that [424] appears, the engineer saw the deceased for that distance before he was struck; and had he supposed there was danger could have stopped the train. But we think he had a right to suppose that the deceased wbuld observe the train by his senses, and that he was in no danger until the train was so near to him that he ought to be leaving the track to avoid it. A person of ordinary activity can leave the track in less time than is required to stop the train, and if a person in his ordinary senses neglects to leave the track when the ordinary signals are given, he is guilty of such gross negligence as will preclude his right to recover for an injury occasioned by a collision, which by the exercise of ordinary care he could have avoided. (Sherman on Neg. 33; 60 Mo. 475; Wilds v. H. R. R. Co., 29 N. Y. 315; Galena R. R. Co. v. Jacobs, 20 Ill. 478; Baxter v. Troy R. R. Co., 41 N. Y. 502; Chicago R. R. Co. v. Flarr, 53 Ill. 115.) In this case it is alleged in the answer, and shown by the evidence of the plaintiff, that the deceased was so deaf that he carried a slate to converse with persons whom he met, or with whom he had business. There is the evidence of his father, to the effect that he could hear a bell, and he says, on cross-examination, that the only time he observed him to come to the sound of a bell was when called to dinner by it, and he admits on cross-examination that at that time he was looking at the bell, and might have been induced to come to his dinner from seeing the bell rung, and not from hearing it. And from the evidence in this case it appears that unless he was very deaf he would have heard the whistle of the engine, and been warned of its approach in time to escape from the track, and we think that the evidence shows that his deafness was the proximate cause of the injury, and he being aware of this infirmity was guilty of gross negligence in being on the track as he was walking laterally along it. It was a position of great danger to one who could not hear, and shows recklessness in the deceased. To establish the doctrine contended for by appellant that it was the duty of the engineer to apply the brakes in time to stop the train before it could have reached the deceased, [425] would render [it necessary for trains to be stopped in all cases when persons are seen walking before them on the track, before coming'within the distance over which a train must go in being stopped; this would be an impracticable rule, and we think that when a train is moving over the track at its ordinary speed (twenty miles an hour is not extraordinary), and a person is seen walking on the track apparently in the possession of his ordinary faculties, the engineer may justly suppose that he will get off the track on sounding an alarm that the train is coming; and under the evidence in this case, if the deceased has not been deaf, we think his remaining on the track was such gross negligence that no recovery could be had. While those who operate railroads should be held to observe the utmost skill and care in running of trains, persons who go on or about the track must be held to extraordinary diligence in looking after their own safety, and become trespassers on the rights of the company when they obtrude themselves in the way of the free passage of trains, and in case of receiving injury will not be entitled to recover, unless in case of very grave negligence on the part of the company; and we think in this case, as shown by the pleadings and evidence, that had the circuit court submitted this case to a jury and a verdict been found for the plaintiff, it would have been the duty of the circuit court to have set the verdict aside on motion of the respondent. The judgment of the court below will be affirmed.