Dubs ex rel. Dubs v. Northern Pacific Railway Co.

Bronson, Ch. J.

(dissenting). Over eleven years ago, in July, 1912, the plaintiff, then a mere lad of nine years, suffered the loss of *183an arm and leg through being run over by 'defendant’s train. This is the third time that this ease has been here. Dubs v. Northern P. R. Co. 42 N. D. 124, 171 N. W. 888, id. 47 N. D. 210, 181 N. W. 606. The law of the case was laid down in the first appeal decided over four years ago. . In a manner it is a reproach upon the administration of justice that litigation should be thus prolonged. In the case at bar a special verdict was rendered upon questions concerning which both parties agreed. If the questions submitted to the jury were too many or upon immaterial or improper matters, defendant is not in a position to complain or to predicate error upon the submission to and the answer by the jury of such questions. The jury specifically found that the engineer of the train, before running over the plaintiff, discovered him to be in a position of peril on the track and, after discovering him to be in a position of peril, failed to exercise ordinary care to avoid injuring him. Tn other words the jury have found specifically in favor of the plaintiff upon specific interrogatories which this court in the first appeal suggested should be submitted to the jury. The answers to these questions support a liability under the law of the ease as announced in the first decision. The majority opinion now finds the ovi■dence to be insufficient- to support such specific findings. In other words, pursuant to the majority opinion, that it is more doubtful now upon the record and the specific ..questions as answered by the jury whether the jury intended to find that the engineer saw the boy in time to avoid injuring him; that is to say, that the jury believed that the engineer saw the boy some 200 or 300 feet away. But the particular inquiry should be directed toward the question whether there is evidence to support the specific findings of the jury with reference to the application of the last clear chance doctrine. Generally speaking, the record discloses that on the day when the boy was injured the sun was shining and the vision of the engineer ahead was unobscured. The engineer had a clear, straight track ahead and he was looking forward all the time. He saw a small object in the center of the track ahead of him. At the time he did not know what it was. He will not say it was 4-00 feet or 700 feet. It was some distance away. He kept watching that object. When he got about 200 or 300 feet away he saw it was a dog. It was lying on the track cross-wise and did not move. When he was about 40 feet away the clog jumped up. He saw then *184tliat there ivas a boy there. Prom the time he discovered the dog lying cross-wise on the track until it moved the engineer kept his eyes on it. The engineer testifies that he did not see the boy there at all until the dog got off the track; that the dog was in front of the boy and close to him. There is testimony otherwise in the record that the dog was a pup six or seven months old, about a foot long and ten or eleven inches in height; that the dog was lying asleep on the track about a foot north of tiie boy; that the boy was stretched out between the rails, beside tbe dog, with one forearm and hand upraised and his head resting thereupon; his head ivas up the distance from his elbow to his hand which was almost ten inches; the boy was playing there in the dirt or sand. Manifestly, the jury were warranted upon the evidence in finding that the engineer did, in fact, see the boy when he claims that he first saw the dog; assuredly, the evidence warrants the finding that the boy’s form offered a larger object of perception and one more readily seen, than tbe dog’s form.

I am of the opinion that the evidence in the record, above stated merely in a general way, is sufficient, together with the surrounding circumstances as introduced in the evidence, to support the finding of the jury that the engineer did see the boy and failed after discovery,., to use reasonable care to avoid injuring him. Palon v. Great Northern R. Co. 129 Minn. 101, 151 N. W. 894.