Hines v. Sweeney

CourtUnited States State Supreme Court of Wyoming
Citation28 Wyo. 57,201 P. 165
Docket Number1007
Decision Date03 October 1921

Rehearing Denied November 22, 1921, Reported at: 28 Wyo. 57 at 82.

ERROR to the District Court of Sheridan County, HON. JAMES H BURGESS, Judge.

Action by Lucy Sweeney as administratrix of the estate of John C Sweeney, deceased, against Walker Hines, Director General of Railroads on account of the death of deceased, alleged to have been caused by operation of a railroad train at a dangerous and negligent rate of speed. There was judgment for plaintiff and motions for new trial made by both parties were denied; defendant brings error and plaintiff files cross petition in error. The material facts are stated in the opinion.


Goddard & Clark and C. A. Kutcher, for plaintiff in error.

The evidence is insufficient to establish negligence on the part of defendant and shows the sole proximate cause of the collision and resulting injuries and death of deceased was his own carelessness. The relief sought by plaintiff in error is the directon of a judgment in his favor, notwithstanding the verdict under Chapter 134 of the Laws of 1915. The motion for new trial was filed for this purpose and not to secure a retrial of the cause. Defendant was entitled to an instructed verdict. (Boswell v. Bank, 16 Wyo. 161; 92 P. 624.) The evidence failed to establish a dangerous and negligent rate of speed. The proximate cause of the collision was the carelessness of deceased in starting out with a motor car in the first instance against the advice of the station agent, in failing to look out for the train and in failing to apply the brake on his motor after he heard or saw the approaching train, also in jumping off in front instead of the side of his motor, which resulted in his getting knocked down and pinned beneath the car on the track. The engineer took every reasonable precaution to avoid the accident. The rule contended for by plaintiff in error apparently is that the engineer was bound to foresee and anticipate the carelessness of deceased and the resulting accident which occurred to him and to regulate the train accordingly. A similar contention was over ruled in Hofford v. Illinois Central, 110 N.W. 447. The master is not chargeable with negligence where the injury could not have been foreseen or anticipated, as to the probable result of the accident or omission complained of. A person is not answerable at law for a failure to avert or avoid peril that could not have been foreseen by one in like circumstances, and in the exercise of such care as would be characteristic of a person so situated. (3 Labatt M. & S. 1042; 29 Cyc. 432; 20 R. C. L. 11.) Persons operating dangerous instrumentalities have a right to rely upon those who may be imperilled thereby to take the usual and customary measure to avoid injury. (20 R. C. L. 31; Keefe v. C. N. & W. Co., 60 N.W. 503.) In the absence of statute or ordinance no particular rate of speed of trains is of itself, even at crossings in the country, sufficient to impute negligence. (Cohoon v. C. B. & Q. (Ia.) 57 N.W. 727; Mo. P. Ry. Co. v. Hansen, (Neb.) 66 N.W. 1105; Partlow v. Illinois C. R. R., 37 N.E. 663; S. L. & M. S. R. Co. v. Barnes, 31 L. R. A. N. S. 778.) An engineer has a right to presume that persons walking along the track will appreciate the danger and act with discretion and he is under no obligation to stop the train and lessen speed before discovering that such person is heedless of warnings given of the approaching train.

(Shearman on Negligence, Third Edition, 481. L. R. Co. v. Jolly's admx. 90 S.W. 997; Southern Ry. C. Gray, admrx. 60 L.Ed. 1030; Vizacchero v. R. I. Co. 59 A. 105; Cohen v. Eureka Co. 14 Nev. 376; Warner v. R. R. Co. 44 N.Y. 465; Telfer v. N. R. Co. 30 N. J. Law 188; Winston v. R. & G. R. Co. 90 N.C. 66.) The engineer, upon discovering the motor on the track, reduced the speed of his train to a rate of from 18 to 20 miles per hour which would have enabled deceased to get off the track in safety, had sounded the whistle and kept a careful lookout ahead; having done all in his power to stop the train and avoid a collision he was not guilty of negligence. (20 Cyc. 530; So. Ry. Co. v. Gray, 136 L.Ed. 1030.) Instruction No. 14 correctly announced the law in harmony with the foregoing authorities. Plaintiff in error asks that this court direct judgment to be entered in favor of defendant, notwithstanding the verdict, and in case relief in this form be denied, then that the judgment below be affirmed.

Brome & Hyde and E. E. Enterline, for defendant in error.

The defendant does not seek a new trial; its sole complaint here is that the trial court did not direct a verdict for defendant at the close of the evidence. It is urged that deceased was negligent in starting out with his crew ahead of an over due train and also negligent in the manner he attempted to stop the motor when he discovered a train approaching on the track behind him. If deceased was negligent, his negligence could only operate to diminish the amount of recovery; it is not a defense under the Federal Employers' Liability Law. If the evidence disclosed negligence on the part of the engineer the trial court was not in error in refusing to direct a verdict for defendant; a reasonable interpretation of the evidence must establish negligence on the part of the engineer. As to the cross appeal by plaintiff below and defendant in error here, we contend that the verdict and judgment below furnished inadequate compensation to the widow and children for the injury they have sustained; this is apparently recognized by counsel for plaintiff in error in asking this court to affirm the judgment if this court should not direct a judgment for plaintiff in error notwithstanding the verdict. Defendant in error however, seeks a new trial; she complains of the giving and refusing of certain instructions set forth at pages one to three of the bill of exceptions, instruction refused being number "L," instruction given being nine and ten respectively, all of which was prejudicial to plaintiff below. (29 Cyc. 521; Dumane v. C. M. & W. Co. 72 Wis. 523; Dickson v. O. & St. L. Co. 124 Mo. 140.) The giving of instructions nine and ten were prejudicial, especially in view of the courts refusal to give instruction numbered "L" since the latter instruction relates to the conduct of Sweeney in starting out ahead of the train, thus authorizing the jury to find said act to be negligence on the part of deceased; when the engineer was notified at Felix that a motor car was just ahead the negligence of deceased, if any, in starting out was eliminated from proper consideration. For these reasons we submit that the action of the court in submitting the issue of plaintiff's negligence to the jury should be approved, but where there is error in giving and refusing instructions to which we have challenged the court's attention, the judgment should be reversed and a new trial ordered.

Goddard & Clark and Chas. A. Kutcher, in reply.

We do not contend that any negligence of deceased bars recovery if the engineer was also negligent, but the engineer was not shown to be negligent as a matter of law. The sole proximate cause of the death of deceased was his own carelessness. This is emphasized by the testimony quoted in the brief of defendant in error; the law does not require the master to anticipate the negligence of his servant. (1 Thompson Neg. 228.) The engineer kept a careful look out, sounded his whistle and reduced the speed of his train. His duty did not require him to further reduce the speed of his train until he discovered the peculiar peril of deceased. (Vezacchero v. R. I. Co. 59 A. 105.) Counsel seeks to distinguish the Iowa case of Hoffard v. Ill. Cent. Ry. Co. 110 N.W. 446 from the case at bar, but in that case the engineer was not handed a note advising him of the section men on the track ahead. It is apparently contended that the engineer should have anticipated carelessness on the part of deceased with his motor car and should therefore have regulated the speed of his train in a way to avoid collision. This contention was fully answered by the Iowa case above referred to. As to the cross appeal, a new trial cannot be had because of the smallness of damages allowed except when the action is upon a contract and the claim is for injury of property. (Sec. 3601 Comp. Stats. 1910.) Our statute in fact forbids new trials on such ground in an action for an injury to the person or reputation, etc. (Sec. 4602 Comp. Stats. 1910.) Even if the engineer was negligent, the evidence shows such gross negligence on the part of deceased as to render the verdict excessive. Instruction "L" the refusal of which is complained of, was not numbered or signed as required by Section 4499 Comp. Stats. 1910, therefore its refusal cannot be assigned as error. (Morrisette v. Howard, (Kans.) 63 P. 706; Mason v. Siglitz, (Colo.) 44 P. 588; Craig v. State, (Ind.) 26 N.E. 842; Chic. L. Co. v. Fix, (Okla.) 78 P. 316.) The quotation from 29 Cyc. does not state the exceptions to the rule and the instruction respecting emergencies does not apply. Instructions numbered nine and ten given by the trial court are amply justified by the authorities. The cross petition in error is without merit.

BLUME, Justice. POTTER, C. J., and KIMBALL, J., concur.


BLUME, Justice.

This action was brought by the administratrix of the estate of John C. Sweeney, deceased, as plaintiff, on account of the death of said deceased by a train of plaintiff in error defendant below, which was alleged to have been run at a dangerous and negligent rate of speed. For convenience the parties will be hereinafter referred to in the same order as in the court below. The evidence is nearly ...

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