Omaha & R. V. R. Co. v. Cook

• Decision Date: 19 February 1895
• Citation: 62 N.W. 235,42 Neb. 905
• Court: Nebraska Supreme Court
• Parties: OMAHA & R. V. R. CO. v. COOK.

42 Neb. 905

62 N.W. 235

OMAHA & R. V. R. CO.

v.COOK.

Supreme Court of Nebraska.

Feb. 19, 1895.

Syllabus by the Court.

1. The engineer in charge of a railroad train may presume that a trespasser discovered on the track is in possession of his senses, that he will appreciate the danger, and act with discretion. He is therefore under no obligation to stop his train, or even lessen the speed thereof, before discovering that such trespasser is in imminent danger of personal injury.

2. Such presumption has no application to persons incapable of caring for themselves, such as the very young and the helpless.

On rehearing. Denied.

For former report, see 60 N. W. 899.

POST, J.

We are, by means of a supplemental motion for a rehearing, asked to modify the proposition stated in the second paragraph of the syllabus of the opinion filed herein November 8, 1894. 60 N. W. 899. It is said that the rule therein asserted is oppressive, and calculated to greatly interfere with the running of trains, and embarrass railroad companies in the transaction of their business as common carriers; and as said in the brief accompanying the motion: “If such be the rule, trespassers are in control, if they choose to be, of the tracks and premises of railroad companies, and the operation of trains may depend entirely upon the whim or caprice of evil-disposed persons.” But counsel evidently misconceive the scope and effect of the decision complained of. What was there in fact decided is that, since the peril of the plaintiff below was discovered by the engineer in charge of the train in time to have averted the injury, the giving of the instruction referred to in the syllabus is, at most, error without prejudice. Among the special findingsby the jury was the following: “Q. Could the defendants agents have, by the appliances then at their command, after it became apparent that plaintiff was walking between the rails unaware of the coming of the train, have stopped the train before it reached her? A. Yes.” We certainly do not wish to be understood as intimating that it is in every case the duty of the engineer to stop his train, or even lessen the speed thereof, on the discovery of a trespasser upon the track, or that the rule of the instruction would be a safe direction in every action against a railroad company for injuries to trespassers. The rule is correctly stated in Wharton on Negligence (section 389a) thus: “An engineer, who sees before him on the track a person apparently capable of taking care of himself, has a right...