Buhler v. Morgan's L. & T. R. R. & S. S. Co.

PROVO STY, J. Alongside of the entire length of. the Southern Oil Company’s Mill at Gretna is a platform about three feet from the ground, and inclining to the ground at one end. Alongside of this platform, about 18 inches from it, is a switch track of the defendant company. This switch track goes no further than the toe of this incline, where a bumper arrests the cars and prevents their running off. This bumper consists of a mound of earth about three feet high and five to six feet in diameter. Alongside of this switch track is the main -track and other switch tracks of the defendant company, forming a network of tracks. On this network of tracks, cars are almost constantly being switched. A switching engine had just placed three box cars next to the platform on the switch track, and had gone back to the main track for two more box cars to be put on the switch track and connected with the three already there, when the little daughter of the plaintiff, aged 13 years, 5 months, and 12 days, met with the accident upon which the present suit in damages is based. She testifies that she had brought the midday meal of her sister, who worked at the mill, and that she was sitting with another girl in a window opposite the opening between the bumper and the end box car, waiting for her sister to get through eating dinner, when she saw a piece of sulphur on the ground in front of her, he- *425 tween the switch track and the main track, and that, wishing to get this piece of sulphur, she left her seat and walked across the platform, and jumped to the ground, and was crossing the switch track between the box car and the bumper when the box car came upon her suddenly (as an effect of the switch engine having come with two box cars and bumped against the three stationary cars), and pinned her against the bumper, and crushed her leg. She testifies that when she went upon the track she saw the switch engine about half a block áway, going from her, and that she did not know that the two cars which bumped against the three cars had been “turned loose” by the engine; that she did not see them. The conclusion from this testimony would be that the coupling was made by the process known as a “running switch,” or “kicking the cars”; but such was not the fact; the coupling was made slowly and carefully, and the only negligence sought to be imputed to the defendant company was that there was not a brakeman at the end of the stationary cars to make sure that no one was between them and the bumper. We do °not think that such obligation rested upon the defendant company. Railroad employés engaged in switching, who have just placed cars within two or three feet of a bumper, have a right to assume that they may safely make a coupling to such cars without going to the end of the cars to ascertain whether, in the few intervening minutes, some one has not come and interposed his person between the cars and the bumper. Especially is this so when, as in this case, any one wishing to go to the other side of the track could do so just as readily by going around the bumper as between it and the cars. The defendant company was guilty of no negligence. Plaintiff’s little daughter, on the other hand, was guilty of the grossest negligence, and has but herself to blame for the misfortune that has befallen her. Judgment set aside, and suit dismissed, at plaintiff’s cost. SOMMERVILLE, J., takes no part herein.