Omaha & Republican Valley Railway Co. v. Cook

• Decision Date: 19 February 1895
• Docket Number: 5101
• Citation: 62 N.W. 235,42 Neb. 905
• Parties: OMAHA & REPUBLICAN VALLEY RAILWAY COMPANY v. MARY COOK
• Court: Nebraska Supreme Court

62 N.W. 235

42 Neb. 905

OMAHA & REPUBLICAN VALLEY RAILWAY COMPANY v. MARY COOK

No. 5101

Supreme Court of Nebraska

February 19, 1895

SUPPLEMENTAL motion for a rehearing of the case as reported in 42 Neb. 577.

MOTION OVERRULED.

POST J. HARRISON, J. not sitting.

OPINION

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. (See ante, page 577.) 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 findings by the jury was the following:

Q. Could the defendant's agents 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, Negligence, 389a, thus: "An engineer who sees before him on the track a person apparently capable of taking care of himself has a right to presume that such person on due notice will leave the track if there be opportunity to do so; and the engineer will not in such cases be chargeable with negligence if, in consequence of such person not leaving the track, the train cannot be checked in time to avoid the striking. But it is otherwise with...