Benson v. Central Pacific Railroad

The Court. This action is brought by the plaintiff, an infant, to recover damages for personal injuries alleged to have been sustained by her while walking upon the roadway of defendant, by being run into by a locomotive operated by defendant.

The case was tried by a jury, which returned a verdict for defendant, and the appeal is from the judgment and from an order refusing a new trial.

Plaintiff’s evidence tended to prove the following facts:—

Plaintiff, a child of but six years of age, with her father and the other members of her family, took passage on a train of defendant for Watt’s Station, in Alameda County. As the train approached Watt’s Station, the whole family arose and took positions at the door of the car, so as to be able to step off the train without delay, and immediately on the stoppage of the train at the station proceeded to leave it; but the stop was so short that but part of the family were able to get off, and the train moved away with the father and the plaintiff and her brother still on it. While the family was thus endeavoring to get off, the conductor of the train was on the platform of the car, and when the train began to move, the father asked him, “Why didn’t you let me off?” and the conductor thereupon told the father, “You cannot get off here; you have got to go to the next station, only a short distance, and you can walk back when you get to the next station.” When the next station, Emery, was reached, the father, with plaintiff and her brother, left the train. The father had never before been on the part of the railroad between Watt’s and Emery Stations, and on stepping off looked up and down the railroad. He saw no cars. He could observe no other route than the railroad to get back to Watt’s Station, and in fact there was no other way; one side of the railroad right of way being the waters of the bay, and the other a slough, running through marsh and swamp. There were two tracks, and supposing that if a train should come along [47]behind him it would be on the east track, as the train which he had just left was occupying the west track, the father started to wa/k southerly along the east track to Watt’s Station, carrying tiza baby on one arm, and holding plaintiff by the hand; and he had thus proceeded for a distance of five hundred or six hundred feet south of Emery when he heard a noise back of him. Looking in the direction of the noise he saw a train, but owing to the existence of a curve in the road, it was impossible for him to determine on which track the train was running. A moment later he looked again at the train, and saw that it was on the east track, the same on which he was walking. He then left that track, crossing to the west track, and had entirely cleared the east track, continuing all the time to hold plaintiff by the hand, when the plaintiff, frightened by the approach of the train, while it was yet one hundred and fifty or two hundred feet from her, broke away from her father, and ran back to and on the east track, where she was struck by the flying train, and received the injuries complained of. The accident happened in broad daylight; the view of the railroad between the two stations, a distance of two thousand and sixty-two feet, was unobstructed; and a person standing at either station could see to, and some distance beyond, the other; and a person on the spot where plaintiff and her father were when the latter first heard the train, namely six hundred feet south of Emery Station, could easily be seen from the latter place. Plaintiff and her father were in fact noticed by the fireman of the train, according to the latter’s evidence, while they were still on the track on which the train was approaching them, and were seen by him to cross over to the other track; and they were observed by the engineer when about one hundred yards from the train; notwithstanding which the train, which had pulled out of Emery Station at a speed of fifteen miles an hour, continued such speed. Ho bell was rung, or whistle blown, or other signal given plaintiff, and no attention paid to her presence on the track, until the train was within one hundred and fifty feet of her, when an endeavor was made to stop it, but too late to be of use.