Duekee v. Central Pacific R.R.

Myrick, J. Action for damages for injuries received by the plaintiff in being run over by a locomotive of the defendant. There was no question as to the plaintiff having been injured. The only questions were as to negligence of the engineer of the defendant, and as to contributory negligence on the part of the father of the plaintiff, the plaintiff being at the time of the injury an infant of the age of about four and a half years.

The train of cars had halted, as usual, at a station (being on time), and the engineer received from the conductor the usual signal to start. Immediately in front of the engine was a trestle and bridge, just beyond which a county road, leading to the house of plaintiff’s father, crossed the track. The child was injured at a point at or near where the trestle joins the hard ground.

The engineer testified that on receiving the signal to go ahead, and on starting, he looked along the track and saw nothing out of the way, but after he was under way he saw the head of the child raised from between the timbers, when he instantly reversed the engine and whistled for brakes,— but too late.

A witness for the plaintiff testified he was some distance away, managing a pair of fractious horses, and that at the moment the train started he saw the child standing on the track, throwing its hands as if “ daring the engine.”

It is barely necessary to say there is no pretense that the engineer saw the child in time to avoid the occurrence; but it is claimed he should have seen him, and that his failure to see him was from negligence.

For the purpose of showing negligence on the part of [535]the engineer, a witness was permitted to testify as to declarations made by the engineer; and the ruling of the court in admitting the testimony of this witness is claimed to be error.

As soon as the train was stopped, the conductor and brakeman removed the child from under the tender, and found that its feet were injured; they did not know whose child it was, but started to carry him to a house near by,—about a quarter of a mile; when near the house the witness met them, and told them whose child he was, and that the father lived at some distance on the other side of the track; the witness went to the engine, which he reached some few minutes after the occurrence, —he thought about five minutes; he there met the engineer and fireman, and asked them how it occurred; the witness, against the objections of the defendant, was permitted to give the reply of the engineer to this question; he testified that the engineer stated to him that when ho started up the train he was looking up toward Peacock's (a house on the right-hand side of the road) to see if any one was coming down, and when he turned around he saw the boy and blew the whistle, but when he reversed the engine it was too late. This evidence was claimed to be competent and proper, as part of the res gestae.