Haddox v. Northern P. Ry. Co.

• Citation: 113 P. 1119,43 Mont. 8
• Parties: HADDOX v. NORTHERN PAC. RY. CO. et al.
• Decision Date: 23 February 1911
• Court: United States State Supreme Court of Montana

113 P. 1119

43 Mont. 8

HADDOX v. NORTHERN PAC. RY. CO. et al.

Supreme Court of Montana

February 23, 1911

Appeal from District Court, Jefferson County; Lew. L. Callaway Judge.

Action by Thomas Haddox against the Northern Pacific Railway Company, a corporation, and another. Judgment for defendants and plaintiff appeals. Affirmed.

M. H Parker, Maury & Templeman, and J. O. Davies, for appellant.

Wm Wallace, Jr., John G. Brown, and R. F. Gaines, for respondents.

SMITH J.

On January 20, 1909, Omer Haddox, about 14 years of age, a son of the plaintiff, was struck by an engine of the defendant company, in its yards at Whitehall, and killed. The engine was in charge of engineer Thomas Barry. The complaint alleges that Barry willfully and intentionally drove the engine against the boy at a rate of speed in excess of 30 miles per hour. The closing allegation is that the acts of the defendants were "willful, intentional, and in criminal disregard of the life and safety of the boy." No negligence is charged. Compensatory and punitive damages are demanded. Both parties introduced evidence. After the testimony was closed, the district court of Jefferson county directed a verdict for the defendants. Plaintiff appeals from the judgment entered on the verdict.

Wm. B. Huddleston testified for the plaintiff: "Before the engine struck the boy there was no unusual sound from the engine more than his whistle; the whistle was a danger signal--the stock whistle. The whistle must have sounded fully 200 yards before he struck the boy. Before the boy was struck he was walking towards the depot, west, with his head down, and just before the train struck him he looked up and across towards an engine that was on the side track. He had a dog with him. Between the time that I heard this stock or emergency whistle and the time the boy was struck, he had not turned around towards the engine that was approaching him. I could not see any efforts that Mr. Barry made to stop that train before the boy was struck; I could not see inside the cab. I could not say that there was much checking of the speed; I could not see that he was making much effort to check the train--that is, at the time it struck the boy. The train stopped at the usual place by the depot where it formerly stopped. The boy was carried or thrown by the train in the neighborhood of 30 feet--some that measured it said it was 37 feet; he was eight feet of [off] the track. When I first noticed the boy on the track he was, I should judge, 400 yards below the depot, east of the depot. I could not say how long he was on the track; he walked up, I should judge, within 200 yards until the train struck him. When I first heard the stock whistle, I would judge the train was running 35 miles an hour or better. When it struck the boy, it probably had slowed a little; I could not tell exactly. Before the engineer got to the boy he could have seen him half a mile at least. If there had been any attempt to check the train before it struck the boy, I would not have noticed it particularly. I would have been able to see if any checking of speed had occurred. I did not see any checking of the speed of the train. The boy was struck under the left shoulder. I am certain that he was walking on the ends of the ties, because he was close to the rail. I made the statement at the coroner's inquest that I made the remark that the boy would get killed just as Barry jerked his whistle for the usual whistle when anything is on the track. He whistled along and ran up 60 or 70 feet, when he began to whistle short whistles up to the time the boy was struck. I also said in answer to the question, 'Could you tell whether or not the emergency brakes were applied?' 'I could not, only by the train slowing up.' I stated that the way I knew the emergency brakes were applied was by the train slowing up, and that statement was correct. There must have been a slowing up of that train. Barry was slowing up to come into Whitehall."

D. F. Riggs testified: "The train was running very fast in comparison to the usual running into the station. I would say it was very fast before and after it struck the boy. After the train struck the boy it stopped immediately afterwards. It was right near the depot when it struck the boy, and it stopped at the depot, or just passed the depot; I think before it finally came to a standstill it just ran past the depot. It went the length of a train or a little more beyond the usual stopping place. I heard the train whistle; he whistled as he came to the depot, or nearing the depot. The stock whistle blew several times before the boy was struck; just before and about the time he was struck the whistle was blown. It must have been 300 or 400 feet, I would judge, from the train to the boy when the stock whistle was sounded."

E. O. Snails testified: "I heard the stock whistle from the engine. The stock whistle was blown 75 or 80 feet from the boy when I first noticed it. He also rang the bell. The train stopped in front of the depot, at the usual stopping place. I could not say for sure whether there was any checking of the speed for the stopping place or not. I saw the boy when he first went on the track. I should judge that was about 300 feet from where he was killed. He was going west, petting the dog on the head; he was looking down towards the dog. He made no movement whatever indicating that he saw the train. When the stock whistle started sounding, I should judge the train was about 75 or 80 feet from the boy. When I first saw the boy he was on the outer edge of the ties on the north side of the track. He was on the ties until the pilot hit him. I could not hardly judge how long he had been there. As I said before, he traveled in that way about 300 feet. He was just walking along slow, playing with the dog. I heard the accident whistle and the stock whistle and the crossing whistle."

Thomas Barry, the engineer, called by the plaintiff, testified "The first I saw of the boy I was about 10 car lengths from him, when he first approached the track; that would be about 400 feet away. That train could be stopped in 300 feet, going 30 miles an hour at that point." On cross-examination he said: "When I first saw the boy, he was in a place of safety, clear of the rails." (Redirect.) "Q. How far from the place where he was struck was the boy when you first saw him? A. I could not say exactly to that; that ain't clear to me now how far he had walked along the track before I struck him. He was not in a place of danger when I first saw the boy; he got closer to the track afterwards." (Recross.) "I could not stop my engine after the time that I saw the boy step from his place of safety into his place of danger. The train could not be stopped; it was impossible." The plaintiff here rested his case and the defendants moved for a nonsuit, which motion was overruled. Whereupon Barry testified for the defendants as follows: "When I first saw the boy, he was outside of the rails, clear of the engine, I should judge, about three feet when I first saw him, when he started to walk up the track. He changed his location. By the time I started the stock whistle he started towards the track; he leaned off towards the track. When he came in towards the track, I put the brake into the emergency and tried to stop. There was nothing else that I could have done to have stopped the train, nor any one else. The boy did not heed my danger signal; he never looked up. When I discovered he did not heed my signal, I started the stock whistle and put the brakes in the emergency, and did all I could to stop. I did all I could to avoid striking the boy; my intentions were not to strike the boy at any time. My purpose in sounding the stock whistle was to draw the boy's attention, so that he would step out of the way when he stepped in danger. If he had taken one step, he would have been out of the way. When I sounded the stock whistle, the engine was going about 20 miles an hour. When I struck the boy, I was going between 12 and 14 miles an hour probably; it is pretty hard to judge about speed at a time when I was trying to stop. When I first sounded the stock whistle, going at the rate of 20 miles an hour, I could have stopped probably in 250 feet. I see the boy when he came up to the main line. I did not see him come from behind the cars; I did not know where he came from. I could not say how long the boy walked along the track before he was struck. He could not have walked very far; I could not say as to the...