Studer v. Southern Pacific Co.
Before: Harrison
Synopsis
Action fob Death—Contributory Negligence — Climbing between Freight Cars at Crossing—Nonsuit.—A child between twelve and thirteen years old, who attempts to cross between the cars of a freight train standing at a crossing, and while in the act of climbing over the couplings, is killed by the sudden and unannounced, starting of the train, is chargeable with contributory negligence as matter of law, and in an action to recover for such death a nonsuit is properly granted.
In.—Eights at Eailroab Crossing.—Neither a railroad company having the right to use temporarily a crossing of its road over a street, as a part of its right of way, nor persons passing over the street crossing, are to be regarded as trespassers. Each is required to exercise hi* rights with reference to the rights of the other; hut an interference by one with the rights of (he other cannot entitle the other to disregard, the proper mode of using the street, or to act negligently in crossing: it.
In.—Unlawful Blockade of Street—Negligent Passing not Excused.— A train of cars, unlawfully blocking a crossing, does not justify a. negligent attempt to pass between the cars; and the risk of passing between a train of cars likely to get under way at any moment is so great that no one who has a knowledge of the danger has a right to assume it.
Id.—Negligence of Minor.—The fact that the deceased was only about twelve years of age, did not require the court to submit to the jury whether his attempt to cross between the cars constituted negligence, The law imposes upon minors the duty of giving such attention to their surroundings and care to avoid danger as may fairly and reasonably be expected from persons of their age and capacity; and children, as well as adults, must use the discretion which persons of their years ordinarily have, and cannot be permitted with impunity to indulge in conduct which they know, or ought to know, to be-careless.
Id.—Negligence of Eailroad Company—Notice of Starting—Proximate Cause—Contributing Act.—The failure of the railroad company to-give notice that the train was about to start was not the proximate cause of the injury received while crossing between the freight cars; and it is sufficient to defeat a recovery that the injury could not have-occurred but for that act, and that that act contributed to the injury, notwithstanding any wrong or negligence of the railroad company in starting the train suddenly and without notice.
HARRISON, J. Plaintiff brought this action to recover damages for the death of his son, alleged to have been caused by the negligence of the defendant. At the close of the plaintiffs testimony the court granted a nonsuit, and from the judgment thereon the plaintiff has appealed.
The facts shown at the trial are as follows:
On the 22d of July, 1895, the defendant was moving a freight train of about fifteen cars, loaded with basalt [402]Mocks, and on arriving at Cordelia station the train stopped. The track of the defendant at this station runs parallel with Main street, and directly south of it. Near the station there is another street which intersects Main street at right angles, and when the train was stopped it stood directly across this intersecting street—the locomotive and two or three cars being to the east of it—and .the travel into it from Main street was thereby obstructed. After the train had stood in this position eight or ten minutes, the deceased, a child between twelve and thirteen, years old, came along Main street from, the west, as far as the intersection of the other street, and after waiting there two or three, minutes attempted to cross the train between two of the cars, and while in the act of climbing .over the coupling the train started backward without giving any notice by bell or whistle, and he was injured by being crushed between the cars, and subsequently died from the injuries so received. Whether the court properly granted the nonsuit depends upon whether it appeared from the testimony on the part of the plaintiff that the deceased was guilty of negligence.
• The place where the injury was received was a public highway, and the deceased is not to be regarded as a trespasser by reason of his attempt to cross the street while it was obstructed by the defendant’s cars. Nor was a temporary obstruction of the street, by stopping the train, in violation of any right of the deceased, since the defendant was also entitled to use the crossing as a part of its right of way. Each was required to exercise his right with a proper reference to the rights of the other, but an interference by one with the other in the exercise of his right did not confer upon the other the right to disregard the proper mode of using the street. The right to do an act does not authorize a person to do it carelessly. If the defendant-improperly blocked the street, or allowed its train to remain upon the crossing for an unreasonable length of time, the de- ■ ceased was not, for that reason, authorized to incur unnecessary risk, or to act negligently in seeking to cross the street, but was still required to exercise such prudence as would ordinarily be required of one seeking to pass between the cars of a standing train which was liable to move at any moment. An attempt to pass between the cars of a train that is liable to. move
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