Chicago, Burlington & Quincy Railroad Company v. Grablin
| Decision Date | 18 October 1893 |
| Docket Number | 4355 |
| Citation | 56 N.W. 796,38 Neb. 90 |
| Parties | CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY v. STANISLAUS GRABLIN, ADMINISTRATOR |
| Court | Nebraska Supreme Court |
ERROR from the district court of Hall county. Tried below before HARRISON, J.
REVERSED AND REMANDED.
O. A Abbott, for plaintiff in error:
The company owes trespassers upon its tracks for right of way but one duty, to-wit, to use all possible efforts to avoid injury to them after they are discovered upon its tracks or right of way. If it has performed that duty, it is not liable to them for any injury they may sustain. Neglect by the company to perform duties it may have owed to others, as, for instance its neglect to keep a vigilant outlook for obstructions, is a duty it owes to its passengers; but trespassers have no right to complain of any failure of duty toward passengers. Some duty owed to them must have been neglected to give them a standing in court. (St. Louis, I. M. & S. R. Co. v Freeman, 36 Ark. 41, 4 Am. & Eng. R. Cases, 608; Chicago & A. R. Co. v. Becker, 76 Ill. 30; Morrissey v. Eastern R. Co., 126 Mass. 380; Johnson v. Boston & M. R. Co., 125 Mass. 79; Sherman & Redfield, Negligence [4th ed.], secs. 5, 8, 15; Central Branch U. P. R. Co. v. Henigh, 23 Kan. 358; Meyer v. Midland P. R. Co., 2 Neb. 339.)
John H. Ames and Marquett & Deweese, also for plaintiff in error:
The plaintiff's intestate, at the time of the accident, was a trespasser upon the railway company's right of way and railroad track. The place of the casualty was nearly eight hundred feet from any lawful crossing. The intestate was not invited to the place, either especially or generally, as one of the public for the purpose of the transaction of business. It does not appear that he had any occasion of his own, or of his parents, to visit the place, except for his own amusement. The company is not liable under such circumstances in the absence of wanton and reckless conduct on its part. (Hargreaves v. Deacon, 25 Mich. 1; Brown v. European & N. A. R. Co., 58 Me. 384; Gillespie v. McGowan, 100 Pa. 144; Baltimore & O. R. Co. v. Schwindling, 101 Pa. 258; Nolan v. New York, N. H. & H. R. Co., 53 Conn. 461; Frost v. Eastern Railroad, 64 N. H., 220; Clark v. Manchester, 62 N. H., 577; State v. Manchester & L. R., 52 N. H., 528; Sweeny v. Old Colony & N. R. Co., 10 Allen [Mass.], 368; Severy v. Nickerson, 120 Mass. 306; Morgan v. Hallowell, 57 Me. 375; Pierce v. Whitcomb, 48 Vt. 127; McAlpin v. Powell, 70 N.Y. 126; St. Louis, V. & T. H. R. Co. v. Bell, 81 Ill. 76; Gavin v. City of Chicago, 97 Ill. 66; Wood v. Independent S.D. of Mitchell, 44 Iowa 27; Gramlich v. Wurst, 86 Pa. 74; Cauley v. Pittsburgh, C. & St. R. Co., 95 Pa. 398; Mangan v. Atterton, 1 Ex. L. R. [Eng.], 239*; Knight v. Abert, 6 Pa. 472; Savannah & W. R. Co. v. Meadows, 10 So. Rep. [Ala.], 141; Woodruff v. Northern P. R. Co., 47 F. 689; 1 Thompson, Negligence, 448; Saldana v. Galveston, H. & S. A. R. Co., 43 F. 862; Ross v. Texas & P. R. Co., 44 F. 44; Carrico v. West Virginia C. & P. R. Co., 14 S.E. [W. Va.], 12; Spicer v. Chesapeake & O. R. Co., 45 Am. & Eng. R. Cases [W. Va.], 28; Blight v. Camden & A. R. Co., 21 A. [Pa.], 995; Dlauhi v. St. Louis, I. M. & S. R. Co., 16 S.W. [Mo.], 281; Hargreaves v. Deacon, 25 Mich. 5; Ross v. Texas & P. R. Co., 44 F. 44; Woodruff v. Northern P. R. Co., 47 F. 689; Palmer v. Chicago, St. L. & P. R. Co., 14 N.E. [Ind.], 70; Tennis v. Interstate Consolidated R. T. R. Co., 25 P. [Kan.], 876; Toomey v. Southern P. R. Co., 24 P. [Cal.], 1074; Masser v. Chicago, R. I. & P. R. Co., 27 N.W. [Ia.], 776; Bouwmeester v. Grand Rapids & I. R. Co., 34 N.W. [Mich.], 414; Scheffler v. Minneapolis & St. L. R. Co., 21 N.W. [Minn.], 711; Philadelphia & R. R. Co. v. Hummell, 44 Pa. 378; Mason v. Missouri P. R. Co., 27 Kan. 83.)
Henry Nunn and Thummel & Platt, contra:
A child is held to no greater care than is usually possessed by children of the same age.
When the statute imposes upon all railroad companies of this state the duty of erecting and maintaining fences on both sides of their roads, and they fail to do this, they owe a greater degree of carefulness and watchfulness to the general public than if they had complied with the law; and when they run their trains through the country without fencing, they do so at their own peril. (Schmidt v. Milwaukee & St. P. R. Co., 23 Wis. 186; Blair v. Milwaukee & Prairie Du Chien R. Co., 20 Wis. 254*; Singleton v. Eastern Counties R. Co., 97 Eng. Com. L., 287.)
The evidence shows the track to have been perfectly clear and unobstructed for nearly half a mile, and that the smallest object of a similar color to the child's clothes could be readily seen for over twelve hundred feet by a person standing on the track. The testimony of the engineer is that he did not see the child until within thirty-five feet of him. It is the duty of an engineer to keep a lookout. Not to discover the child under such circumstances is negligence, and that negligence is the proximate cause of the injury, whilst the negligence of the child in going on the track is only a remote cause. Under his own evidence the engineer was running his train in a wanton and reckless manner. (Houston & T. C. R. Co. v. Sympkins, 54 Tex. 615; Baltimore & O. R. Co. v. State, 33 Md. 554; Brandon v. Gulf City Cotton Press & Mfg. Co., 51 Tex. 121; Meeks v. Southern P. R. Co., 56 Cal. 513; Ostertag v. Pacific R. Co., 64 Mo. 425; Donahoe v. Wabash, St. L. & P. R. Co., 83 Mo. 543; Isabel v. Hannibal & St. J. R. Co., 60 Mo. 475; Isbell v. New York & N. H. R. Co., 27 Conn. 404; Deans v. Wilmington & W. R. Co., 12 S.E. [N. Car.], 77; Wilson v. Norfolk & S. R. Co., 90 N. Car., 69.)
The facts are stated in the opinion.
On July 12, 1888, Samuel Grablin, a boy about nine years old, while trespassing on the track of the Chicago, Burlington & Quincy Railroad Company--hereinafter called the "railroad company"--was struck and killed by engine of said railroad company.
This is a suit for damages brought against the railroad company by the boy's administrator. There was a verdict and judgment for the administrator, and the railroad company prosecutes error.
The averments of negligence in the petition are as follows: That plaintiff is the father of the deceased, and at the time of his death lived on a farm near the railroad company's track; that no part of the line of road at the time of the accident was fenced; that the deceased was about nine years of age, and was sent by his father to look after some stock shortly before he was killed; that the train causing the accident to the deceased consisted of a locomotive and some freight cars, and that said train was not equipped with air-brakes; that the train was an irregular one and out of its usual time, and was running at a great rate of speed, and omitted to give any signal, by bell or whistle, of its approach, and was not on the time of any trains passing at that point, and was so negligently and carelessly run without air-brakes, and without proper care, and without proper signal or alarm of its approach, by reason whereof the deceased was unaware of its approach, etc. There are here, then, pleaded as negligence which caused or contributed to the casualty: (a) the train was not equipped with air-brakes; (b) the train was not on schedule time; (c) the train was run with great speed; (d) on signal by bell or whistle was given of its approach; and (e) that the railroad track was not fenced.
The answer of the railroad company was a general denial of the averments of the petition, and a plea of contributory negligence on the part of the deceased.
On the trial the administrator was permitted, against the objection and exception of the railroad company, to prove by several witnesses, and certain facts and circumstances, that if the engineer in charge of the locomotive had been observing a proper and careful lookout ahead he could have seen the boy in time to have brought the train to a stop before it reached the point where the boy was; or, stated differently, the administrator was permitted to introduce evidence showing a ground of negligence not alleged in the petition as causing or contributing to the accident. This ruling of the trial court is assigned as error. The rule everywhere is that the pleadings and proof must agree. This action was for damages alleged to have been caused by the negligent acts and omissions of the railroad company. The neglect or failure of the engineer to keep a proper lookout ahead is not alleged in the petition as one of these acts or omissions of negligence. Pleadings should be liberally and fairly construed, but such a construction of this petition would not advise the railroad company that on the trial it would have to meet this ground of negligence. No such ground of negligence was alleged in the petition, nor fairly inferable from the language thereof. The allegations in the petition that the train "was so negligently and carelessly run without air-brakes, and without proper care, and without proper signal or alarm of its approach," by every fair construction of the language, had reference to the running of the train without air-brakes, without giving the signal of its approach by bell or whistle, and by running it at a...
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