Young v. Southern Pacific Co.

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 371

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 372 This action was brought by the father and mother of Fred C. Bluhm to recover damages for the death of their son. The father has died and the special administrator of his estate has been substituted.

Fred C. Bluhm, while riding a motorcycle along Main Street, in the city of Woodland, across the railway track of the defendant company, was struck by a caboose, which was being pushed by an engine, and killed. Joined with the defendant company were G.E. Waite, conductor; W.H. Jones, engineer, and G.C. Conley and B.C. Neibling, brakemen, of the train. The case was tried by a jury and a verdict rendered against all of the defendants., As a part of the plaintiffs' case a diagram of the scene of the accident was introduced in evidence. From this it appears that crossing Main Street at and near the place of the accident were two tracks of the railway company, one the main-line track and another a passing track. In approaching the point of collision the deceased first crossed the passing track and then the main track. At the time of the accident the train involved in the accident was being broken up and a part thereof was standing on the passing track. The engine and caboose were on the main track. The complaint alleges that the defendants were negligent in allowing a portion of the train to stand upon the passing track in such manner that a portion thereof projected into and partially crossed Main Street "so that the northerly end of said train of cars extended from the south side of said Main Street into the said Main Street a distance of about fifteen feet," thereby obscuring the view of a person traveling westerly on Main Street and preventing such person from observing the approach *Page 373 of cars "being propelled in front of an engine, in the event an engine shoving cars was being run on said main-line track in a northerly direction toward such railroad crossing, and would be misled and deceived into believing that no cars were being propelled by or shoved by said engine." That immediately prior to the collision the engine of the defendant company was pushing a caboose northward along the track, the engine being fronted north and the caboose in front thereof; that the deceased had no knowledge or notice of the fact that the defendants were engaged in running an engine propelling or shoving a caboose in front of it in a northerly direction along said main-line track, and that by reason of the location of said portions of said train of cars on said passing track he was misled and deceived into believing that he could go safely over said crossing. Immediately before the trial began plaintiffs amended their complaint to add a count charging negligence under the last clear chance doctrine, in which they alleged the same situation with reference to the cars and tracks. It was alleged "that as he passed the northerly end of said portion of said train of cars so placed and allowed so to remain on said passing track, he for the first time discovered that the defendants were engaged in running an engine propelling and shoving a caboose in front of it in a northerly direction along said main-line track, toward the point where he was about to pass over said main-line track, and that he then for the first time discovered the peril in which he would be by reason of proceeding across said main-line track; that Fred C. Bluhm so discovered said engine and caboose immediately upon his passing the said northerly end of said cars so placed and allowed to remain on said passing track, but that at the time of becoming aware of the approach of said engine and caboose it was then impossible for him to avoid continuing westerly over said main-line track, and that he did continue westerly to the said main-line track upon his said motorcycle; . . . that the individual defendants herein who were engaged in the management of said engine and caboose . . . knew that the said Fred C. Bluhm was about to go upon said main-line track . . . and could not avoid so doing; that they then became aware of the peril in which he was situated, and that if he went upon the said main-line track he would be killed or suffer great bodily injury, *Page 374 if the engine or caboose were not stopped or the speed thereof slackened immediately; that the defendants herein negligently and carelessly, after they so became aware of the said danger . . . failed to stop said engine and caboose, or to slacken the speed thereof immediately," and as the result thereof deceased was killed. The distance between the passing track and the main track at the point of collision was between thirteen and fourteen feet.