Edwards v. Chicago, M. & St. P. Ry. Co.

• Decision Date: 13 February 1907
• Citation: 110 N.W. 832,21 S.D. 504
• Parties: EDWARDS v. CHICAGO, M. & ST. P. RY. CO.
• Court: South Dakota Supreme Court

110 N.W. 832

21 S.D. 504

EDWARDS v. CHICAGO, M. & ST. P. RY. CO.

Supreme Court of South Dakota

February 13, 1907

Appeal from Circuit Court, Lincoln County.

Action by Everett Edwards, continued after his death by Thomas Edwards, administrator, against the Chicago, Milwaukee & St Paul Railway Company. From a judgment for plaintiff defendant appeals. Affirmed.

Porter & King (H. H. Field, of counsel), for appellant.

Brown & Brown, for respondent.

CORSON J.

This was an action commenced by plaintiff's intestate to recover damages for an injury caused by defendant's train, known as the "Sioux Falls" train. Judgment and verdict being in favor of the plaintiff, the defendant has appealed. The plaintiff having died subsequently to the trial of the action, his administrator, Thomas Edwards, was substituted as plaintiff; but for convenience the original plaintiff only will be referred to in this opinion.

The train which caused the injury to the plaintiff passed south on the west side of the city of Canton on First street to a point nearly opposite its depot, where it curved to the east and crossed a number of north and south streets in an eastwardly direction some six or eight blocks to its depot the track being upon level ground and the view after passing Fifth street being unobstructed. The injury occurred at or near the east side of Cedar street. Plaintiff resided with his parents on the west side of Bartlett street, the first street west of Cedar street, one block south of defendant's railroad track, and shortly before he was injured he was sent by his mother on an errand to Main street, a street east of Cedar street. The defendant's railway at the point of crossing north along Bartlett street was blockaded by a freight train on what is known as the "I. & D. track," and the plaintiff passed around the engine of that train and on to the Sioux Falls track which at that point was only about 10 feet from the I. & D. track, and from that point east to Cedar street he proceeded along the Sioux Falls track, and the evidence on the part of the defendant tended to prove that he was about 66 feet east of Cedar street at the time he was struck by the engine of the defendant; but plaintiff's evidence tended to prove that he was at or near the east line of Cedar street. The Sioux Falls train was due at Canton at 11:45 a. m., and was on time. It is alleged in the complaint that plaintiff, without fault on his part, was injured by the negligence of the employés of the defendant.

It is contended by the defendant, as grounds for a reversal of the judgment: (1) That the evidence as to the negligence of the defendant's employés was insufficient to support the judgment, and that the motion of the defendant for a direction of a verdict in its favor should have been granted by the trial court; (2) that the plaintiff was guilty of contributory negligence, and was therefore not entitled to recover in this action; (3) that the court erred in admitting the deposition of one John Zika, taken in a former action between the same parties; and (4) that the court erred in permitting the plaintiff to amend his complaint after the trial.

1. It appears by the evidence of the engineer and fireman that just before the accident the engineer was attending to his engine; that the plaintiff was not seen upon the track until the train passed Bartlett street, and was first seen by the fireman, who called the attention of the engineer to the fact that the plaintiff was on the track; that immediately thereupon the air brakes were applied, the bell rung, and the alarm whistle sounded; that the engineer was unable to stop the train in time to avoid the accident; and that the train at the time the plaintiff was discovered was running at the rate of from six to eight miles an hour, and when it struck the plaintiff the speed had been reduced until it was moving at the rate of only two miles an hour. It is contended by the plaintiff that the evidence of the engineer and fireman as to the ringing of the bell and the sounding of the whistle, after they discovered the plaintiff on the track, was contradicted by evidence on the part of the plaintiff; that there was evidence tending to prove that the accident would have been avoided by the exercise of ordinary care on the part of defendant's employés after the plaintiff was discovered to be on the track; and that therefore the case was properly submitted to the jury. We are inclined to take the view that the plaintiff is right in his contention. While there was evidence on the part of the defendant corroborating the testimony of the engineer and fireman as to the ringing of the bell and the sounding of the whistle just before reaching the point where the plaintiff was injured, there was evidence on the part of the plaintiff tending to prove that neither the bell was rung nor the whistle sounded, and that for a distance of 900 feet westwardly from the place of the injury a person could be easily seen and distinguished upon the track. The evidence was also conflicting as to the speed of the train at the time the plaintiff was struck and injured. The evidence was voluminous, and no useful purpose would be served by reproducing it in this opinion. The rule seems to be well settled that, where there is a conflict in the evidence or where impartial jurors might draw different conclusions therefrom, the case should be submitted to the jury. Railroad Company v. Stout, 17 Wall. 657, 21 L.Ed. 745; Zwack v. Railroad Company, 160 N.Y. 362, 54 N.E. 785. The court, therefore, committed no error in denying defendant's motion for a direction of the verdict in its favor.

2. It is disclosed by the evidence that the plaintiff at the time of his injury was an infant not quite seven years of age, and the question of whether or not he had sufficient capacity to...