Sweeney v. Central Pacific Railroad

Myrick, J. Plaintiff’s husband was engineer and conductor of a construction train of defendant, and as such had been for some time, and was at the time of the occurrence herein spoken of, running the train on the road of defendant between Newcastle and [16]New England Mills. The train had taken a load of gravel up the road, and having unloaded, was backing down to Auburn, to there meet an up-bound freight train. The train reached a point near Clipper Gap, and was running at an increased rate of speed: Sweeney was in charge of the train, and was on the forward car, as backing down, the engine being at the other end. He had taken his position there to look out for danger. Just at the point where the occurrence took place, there is a curve in the road, and in rounding the curve, the leading car ran over two head of cattle, several cars and the engine were thrown from the track, and Sweeney was killed. At that point, the track was not fenced. The other facts necessary to the decision of this case are stated in .the opinion of the Court below hereinafter copied. The jury rendered a verdict for the plaintiff for $20,000. Defendant moved for a new trial, which was granted; and plaintiff appealed. In granting the motion for a new trial, the Court below gave its reasons as follows:

“ I am now of the opinion, that the motion for a nonsuit, made when the plaintiff rested in chief, should have been granted, as also the same motion, when it was renewed at the close of the whole case, for the following reasons, viz.: The second ground upon which the nonsuit was asked is: ‘ That it appears, from the testimony introduced by the plaintiff, that the deceased Sweeney had full knowledge of the fact that the road was not fenced at the point or near the point where the collision occurred, resulting in his death; and, having such full knowledge, he, by entering into and continuing in the employment of the defendant, took upon himself the risks and hazards necessarily incident to the service, and that this risk, which resulted in the collision, was necessarily incident to the employment.’

“ From the testimony of the plaintiff’s witnesses, and as the case stood when plaintiff rested, it would hardly be rational to deny that the deceased had known for months, indeed years, before the accident which caused his death, that the road at and for miles each side of the point where the collision occurred was not protected by fences and cattle-guards; and being an intelligent, reasonable human being, and engaged constantly as a locomotive engineer over this particular portion of the road,