Krummack v. Missouri Pacific Rilway Company

• Decision Date: 16 October 1915
• Docket Number: 18283
• Citation: 154 N.W. 541,98 Neb. 773
• Parties: JOHN KRUMMACK, ADMINISTRATOR, APPELLEE, v. MISSOURI PACIFIC RAILWAY COMPANY, APPELLANT
• Court: Nebraska Supreme Court

154 N.W. 541

98 Neb. 773

JOHN KRUMMACK, ADMINISTRATOR, APPELLEE, v. MISSOURI PACIFIC RAILWAY COMPANY, APPELLANT

No. 18283

Supreme Court of Nebraska

October 16, 1915

APPEAL from the district court for Lancaster county: P. JAMES COSGRAVE, JUDGE. Affirmed.

AFFIRMED.

B. P Waggener, J. A. C. Kennedy and Yale C. Holland, for appellant.

Wilmer B. Comstock, contra.

LETTON J. BARNES, J., dissents. FAWCETT and HAMER, JJ., not sitting.

OPINION

LETTON, J.

Action to recover for the negligent killing of a child. Plaintiff recovered a judgment for the sum of $ 2,500, and defendant appeals.

The accident occurred in the switching-yards of defendant in the city of Lincoln. The petition charges that for many years there had been situated on T street, immediately east of Ninth street, a public school building, usually attended during the school year by from 300 to 400 children; that a playground equipped with amusement apparatus was maintained upon the school grounds; that the deceased, a boy of the age of seven years, was amusing himself at the playground; that defendant was negligent in not erecting and maintaining a fence or wall to prevent children from going upon the tracks in the yards, and in not providing a lookout to warn children away from the tracks; that on the day of the accident the defendant had standing on a flat car within 50 to 75 feet of the school grounds some brilliantly painted machinery, which attracted the deceased to the cars upon which the machinery was standing; that he climbed upon the car upon which the machinery stood, and while standing there a long string of cars, without any lookout on the front thereof, was carelessly run against the car on which he stood, after the defendant observed and became aware of his perilous situation, causing him to be thrown from the car and to suffer injuries from which he afterwards died. The answer pleads negligence on the part of the child and on the part of the father, and also pleads that the child was a trespasser.

Thirty-three errors are assigned as to the reception and exclusion of evidence and with respect to certain instructions. We think it unnecessary to consider these in detail. The main contention of defendant is that, since the evidence shows that the deceased was a trespasser in its switching-yards, it was not bound to anticipate his presence, or to use more than ordinary care in the transaction of its business. It is also contended that, owing to the fact that the boy was playing upon the north end of a flat car to which a box car was attached at each end, even if there had been a lookout upon the end of the cars being switched, he could not have seen him. Under ordinary circumstances the first contention states the proper principle of law. We have in a number of cases announced the rules applying to the duty owing by a railroad company to trespassers, and we adhere to the doctrines laid down in Chicago, B. & Q. R. Co. v. Grablin, 38 Neb 90, 56 N.W. 796; Chicago, B. & Q. R. Co. v. Wymore, 40 Neb. 645, 58 N.W. 1120; Chicago, B. & Q. R. Co. v. Wilgus, 40 Neb. 660, 58 N.W. 1125; Shults v. Chicago, B. & Q. R. Co., 83 Neb. 272, 119 N.W. 463, Wanderholm v. Chicago, B. & Q. R. Co., 96 Neb. 764, 148 N.W. 935. The testimony in this case, however, establishes a number of facts which we think remove this case from the operation of the general rule. The switching-yards were just across the street from the school building, which is attended by hundreds of children during the school year. The play apparatus on the school ground was open to the use of the children when school was not in session. The accident occurred shortly after 4 o'clock in the afternoon. Six boys, the oldest of whom was aged 12 years and the youngest, the...