Hines v. Sweeney

• Decision Date: 22 November 1921
• Docket Number: 1007
• Parties: HINES v. SWEENEY
• Court: Wyoming Supreme Court

201 P. 1018

28 Wyo. 57

HINES v. SWEENEY

No. 1007

Supreme Court of Wyoming

November 22, 1921

Error to District Court, Sheridan County; James H. Burgess, Judge.

28 Wyo. 57 at 82.

Original Opinion of October 3, 1921, Reported at: 28 Wyo. 57.

Rehearing Denied.

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

OPINION

ON PETITION FOR REHEARING

BLUME Justice.

Counsel for defendant have filed petition for rehearing herein alleging in general that we erred in the rule of law applied in the case. Other exceptions taken we shall mention in the course of the opinion. It is apparent, judging from the arguments of counsel, that we have not made our position clear in many respects, and have, perhaps, not sufficiently covered the grounds taken by defendant. On account of the importance of the principles involved in this case, and in justice to the learned and able counsel for defendant, we shall at greater length than we would ordinarily do, but as briefly as possible go over the main contentions herein made. Much of what we shall say would have been said in the original opinion, but for the fact that we thought we had covered the subject sufficiently and did not desire to make the opinion too long.

Counsel think that we have not considered the authorities cited by them, and now particularly again refer to Keefe v. Ry. Co., 92 Iowa 182, 60 N.W. 503; Louisville Ry. Co. v. Jolly, 28 Ky. L. Rep. 989, 90 S.W. 977; Vizacchero v. Rhode Island Co., 26 R.I. 392, 59 A. 105; Southern Ry. Co. v. Gray, 241 U.S. 333, 60 L.Ed. 1030, 36 S.Ct. 558; Cohen v. Ry. Co., 14 Nev. 376, and one other case hereinafter mentioned. We had read the authorities cited. Without attempting here to analyze the above cases separately, we may say in general that they fairly support the doctrine that ordinarily an engineer does not need to put his train under control, and that he is entitled to indulge in the presumption of a clear track. We have no fault to find with that doctrine and gave it our approval in the original opinion. The Vezacchero case lays down the rule that only sufficient time need be given for the persons on the track to get out of the way, and counsel contends that this rule should be applied here. We also gave that rule our approval as applied in the ordinary case where section men are on the track. The Jolly case presents many facts very similar to those in the case at bar, and counsel in their first argument herein contended that the case should control here. But there was absent in that case the one vital factor which controls this case; namely, the warning given of the peril of deceased, and that factor was not present in any of the cases cited by counsel for defendant, and we cannot, therefore, see how those cases can be said in any way to be applicable to, or be decisive of, the case at bar.

We stated the rule of law in this case to be that the engineer among other things, when he received the warning, should have put his train under reasonable control, leaving the fact as to whether or not he had done so, for the jury to determine. We cited in support of our holding the cases of R. Co. v. Evans, 170 Ky. 536, 186 S.W. 173, and Ry. Co. v. Jones' Admr's., 171 Ky. 11, 186 S.W. 897. Counsel for defendant contend that these cases do not apply, pointing to the fact that in both of them the engineer completely ignored the warning there given and that in one of them the person injured was not negligent. We do not think that sufficient to distinguish the cases. Contributory negligence on the part of the injured person can neither establish the negligence of a defendant, nor freedom therefrom. Further, to partially ignore a warning may be just as fatal and result in just as great detriment as to entirely ignore it; hence the principle cannot be shaken by that argument.

We have found no other cases than those above cited exactly in point. We think, however, that they find some support in cases arising out of analogous situations, namely, where the injured person is killed or injured at a place much frequented and where his presence, therefore, was to be anticipated. Both classes of cases are based on knowledge of danger. (See cases collated in 11 L.R.A. 352.) In the case of Missouri P. Ry. Co. v. Hansen, 48 Neb. 232, 66 N.W. 1105, cited by counsel for defendant, the deceased was a trespasser injured while walking on the track in a region outside of the city limits, not shown to have been unusually heavily settled. The court held that a speed of 25 miles could not be held to be negligent. We think it is apparent that much greater knowledge of the presence on the track of the deceased in the case at bar was conveyed to defendant's engineer. In addition thereto, the deceased in this case was not a trespasser. In the case of Haley v. Ry. Co., 197 Mo. 15, 93 S.W. 1120, 114 A. S. R. 743, the court announced the following rule:

"It is the duty of a railroad company running its train through a street of a populous city to use ordinary care to regulate the speed of the train so as not to injure anyone, and failure to use such care is negligence at common law."

In Northern Alabama Ry. Co. v. Guttery, 189 Ala. 604, 66 So. 580, the syllabus on this question is as follows:

"Where trainmen know that a track at a certain point is commonly used by pedestrians, it is their duty to keep their train in control at that place so that they may avoid injuring pedestrians after discovering them upon the track."

In the case of Cincinnati etc. Ry. Co. v. Carter, 180 Ky. 765, 203 S.W. 740, the court seems to lay down the rule that in all cases where there is a lookout duty due to any person, the duty of the railroad company is as follows:

"In such cases, the company owes to persons thus using its tracks the duty to give warning of the approach of the train, to keep a lookout, and to operate its train at such a speed as may enable the engineer to stop it before injury has been inflicted."

Similar language was used in Illinois Central R. R. Co. v. Murphy, 123 Ky. 787, 97 S.W. 729, 11 L. R. A. (N. S.) 352, and in Blackburn v. Ry. & R. N. Co., 144 La. 520, 80 So. 708. (See also Georgia R. Co. v. Cromer, 106 Ga. 296, 31 S.E. 759; Shaw v. R. Co., 127 Ga. 8, 55 S.E. 960.)

So we think that the rule applied in the case at bar is amply sustained by both reason as well as authority. We believe, however, that the exception taken by counsel for defendant to the phraseology, such as used in the Jones case, that the control must be such as to be able to stop the train if necessity appears, or, as expressed by some of the other cases above cited, that the train must be able to be stopped before injury occurs, is well taken. While we do not know that the courts meant to so hold, the language may be construed to mean that that duty exists as a matter of law. We think that the only requirement that should be made as a matter of law of an engineer in a case like that at bar is to keep a look-out, give warning, and put the train under such control as a reasonably prudent person would have done under like circumstances, leaving it to the jury to say, unless the case warrants the court to do otherwise, as to whether or not the rate of speed which would make it impossible to prevent injury, after actually and definitely discovering the dangerous position of the persons in peril, was in fact negligent. (See Illinois Central R. R. Co. v. Murphy, supra; Shaw v. R. Co., supra; Georgia R. Co. v. Cramer, supra; Tober v. R. Co., 210 Mich. 129, 177 N.W. 385.) We applied the rule as so construed in the case at bar.

Counsel fear that this rule would seriously interfere with railroad operation. But we do not think so. We cannot deviate from the wholesome doctrine that the law has a high regard for human life, and must apply a rule of law that will effectuate that doctrine. The rule announced by us does not apply unless the engineer has reason to believe that persons on the track ahead of him are in peril; in all other cases he is entitled to indulge in the presumption of a clear track, and does not need to put his train under control further than to give men, whom he has reason to believe to be ahead of him, sufficient time to get out of his way. We do not think that such a doctrine puts too great a burden upon railroad operation.

Counsel claim that under the holding of this court the engineer was required to anticipate the negligence of Sweeney as well as unusual and extraordinary conditions. But this is a very inexact deduction. We hold that, in order to make defendant responsible, it should only be able to anticipate some injury from its acts; that the jury were justified in finding that with the conditions actually confronting the engineer, some injury might reasonably be anticipated by him, unless he reduced the speed so that it would not be negligent; that as to whether he did so was a question for the jury; that since the jury found that he did not, but was negligent, they were further justified in holding that the injuries in question were within the reasonable field of anticipation, or, as expressed generally that these injuries were the natural and proximate result of the negligence, for which the defendant was liable although occurring under unusual circumstances. Let us briefly, even at the risk of repeating some of the things stated in the original opinion, make our position clearer. In the first place, the situation as it was at the time when the engineer received the note "motor car just ahead," could clearly be found by the jury to have been fraught with peril and danger. The fact that the note could be construed to mean that the motor car was just ahead in the cut, the obstruction to vision, the noise of the motor car making hearing difficult, the train running out...