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

• Citation: 60 N.W. 899,42 Neb. 577
• Parties: OMAHA & R. V. R. CO. v. COOK.
• Decision Date: 08 November 1894
• Court: Supreme Court of Nebraska

42 Neb. 577

60 N.W. 899

OMAHA & R. V. R. CO.

v.COOK.

Supreme Court of Nebraska.

Nov. 8, 1894.

Syllabus by the Court.

1. In an action against a railway company for personal injuries by it inflicted, the trial court very properly refused to give an instruction requested, in which the right of plaintiff to recover was made dependent upon the absence on her part of a very slight want of ordinary care, when there had already been given instructions in which had been clearly explained the nature and effect of negligence on the part of each party to the suit.

2. Where the plaintiff was injured by a locomotive of the defendant at a place on defendant's track where such plaintiff had no right to be, and where in fact she was a trespasser, the jury were properly instructed that the engineer was under obligations, as soon as he discovered that plaintiff was on the track, to use all possible means and efforts consistent with the safety of his train and any passengers or persons who might be thereon to avoid injuring the plaintiff, and failing so to do would render the company liable.

3. In a case wherein the evidence admitted of the application of the principle stated, the trial court properly instructed the jury that the rule of law as to the contributory negligence of a child is that it can only be expected and required to exercise that degree of care and discretion which a child of such age would ordinarily and naturally use and exercise under the circumstances shown in evidence and in the same situation, bearing in mind also the amount of intelligence, or want of the same, of the child, if any such had been shown by the evidence.

On rehearing. Affirmed.

For former opinion, see 55 N. W. 943.J. M. Thurston, W. R. Kelly, and E. P. Smith, for plaintiff in error.

C. V. Manatt and A. A. Kendall, for defendant in error.

RYAN, C.

An opinion already filed in this case may be found in 37 Neb., on pages 435 et seq., 55 N. W. 943. A rehearing was afterwards granted upon the request of the writer of the first opinion, and on further argument another submission was had for final judgment in this court. For all practical purposes, the history of the transactions which formed the basis of the action in the district court was fairly stated in the opinion just referred to. The special findings of the jury, each of which was sustained by sufficient evidence, were to the effect that the defendant in error at the time of the injury was about 13 years of age, a girl of ordinary discretion, not deaf to any considerable extent; that just before the accident happened she had left her brother's house to return to that of her father, and went voluntarily upon the right of way of the plaintiff in error, and was then and there trespassing, walking between the rails in the same direction as was moving the train which afterwards struck her; that she did not step outside the rails after the engineer saw her, and was in the act of jumping from the track when the engine struck her; that the whistle sounded but once before she was struck; that the train men, in response to the whistle, applied the brakes; that the agents of plaintiff in error, by the appliances then and there at their command, after it became apparent that the defendant was walking between the rails, unconscious of the fact of the coming train, could have stopped the train before it reached her. The above recapitulation of the facts found is made that the applicability of the instructions given and refused may appear without the necessity of reference to the opinion hereinbefore filed.

The plaintiff in error, by cumulative instructions asked, sought the recognition of various propositions of law. For our purpose a sample of each class will suffice. The twelfth instruction asked and refused was in the following language: “Twelfth. The court instructs the jury that if they believe from the evidence that there was at the time of the happening of the injury...