Krummack v. Mo. Pac. Ry. Co.
| Decision Date | 16 October 1915 |
| Docket Number | No. 18283.,18283. |
| Citation | 154 N.W. 541,98 Neb. 773 |
| Parties | KRUMMACK v. MISSOURI PAC. RY. CO. |
| Court | Nebraska Supreme Court |
“A railroad company * * * is bound in all cases to exercise reasonable care to avoid injuring all persons who are known to be, or who may be reasonably expected to be, upon its right of way.” Chicago, B. & Q. R. Co. v. Wymore, 40 Neb. 645, 58 N. W. 1120. And where the evidence shows that the switchyards of a railway are close to a large public school building and playground, that young children have long been in the habit of playing on or near the cars and tracks, ordinary care demands that in switching cars due regard should be paid to these conditions, and a failure to inclose the tracks and a neglect on the part of those engaged in switching to observe whether children are on the cars or tracks when a train is being backed in, from the lack of which precautions a trespassing child is injured, may constitute actionable negligence.
Appeal from District Court, Lancaster County; Cosgrave, Judge.
Action by John Krummack, administrator of the estate of George W. Krummack, deceased, against the Missouri Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.B. P. Waggener, of Atchison, Kan., J. A. C. Kennedy, of Omaha, and Yale C. Holland, of Lincoln, for appellant.
W. B. Comstock, of Lincoln, for appellee.
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 yard 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, 57 N. W. 522,Chicago, B. & Q. R. Co. v. Wymore, 40 Neb. 645, 58 N. W. 1120,Chicago, B. & Q. R. Co. v. Wilgus, 40 Neb. 660, ...
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